Consensus Theory Vs Conflict Theory

There are several factors contributing to whether or not certain behaviours are criminalized by law in a society.

From the sociological aspect, there are two major models that explain the origin of law and crimes: the consensus theory and the conflict theory. These two theories have radically different views on what crimes are.

“The consensus theory is rooted in John Locke's (1632-1704) “Social Contract Theory”” (Cox). According to Locke’s theory, government is based on a social contract between rulers and their subjects. The government needs to deal with the population justly; otherwise the population will withdraw their consent from the social contract and stop recognising its legitimacy (Tuckness). Locke also defined political power as
a Right of making laws with penalties (ibid). The consensus theory, in a similar manner, suggests that a crime is a behaviour that violates the general values of the society, whereas law is a collective agreement (by the population) which is necessary to be functionally existed, and is enforced for a collective benefit. The population may not recognise the legitimacy of the regime if the law is not justified and equal. With the rapid process of globalization, the consensus theory is almost impossible to work out and can only remain as an academic theory, especially but not exclusively in Hong Kong and other multicultural countries. Hong Kong’s population consists of people of various races, religions and nationalities and we share different values. With a population of different backgrounds, it is often hard to come to a collective agreement on what behaviours should be criminalized. Having said that, it does not mean it will be easy if the population is of a similar background. Taking smoking as an example, although the percentage of daily cigarette smokers in Hong Kong is only 10.5% of the population in 2015 (2), the criminalization of smoking may not be agreed generally even if we only take into account the opinion of residents born and raised in Hong Kong, despite the fact that smoking violates the general thought that it is harmful to our health and the criminalization of smoking benefits the rest of the population. Furthermore, the consensus theory is not always ideal. In China, where the copyright law is not generally respected, if a survey were to be conducted in China on whether piracy should be criminalized, the result would probably turn out as no, since Chinese people do not see piracy as a violation of their value. To conclude, even though the consensus theory is believed to be an ideal version of how law should be, it is hard to work out and may not necessarily work well. The conflict model, on the other hand, is rooted in Karl Marx’s (1818-1883) thought on class conflict. Marxists argue that institutions such as the police and the justice system use law as a means of social control. If the population do not conform, then they will be punished (Trueman). In other words, the conflict model suggests that the behaviours of crime may not necessarily violate the value or the social norm of a society, while law is “closely associated with the distribution of political power and economic resources in a society”, and is a tool to maintain inequality, impose one’s morality on others, and maintain governmental control. An extreme example of the conflict model is the totalitarian government of North Korea, where escaping the country and any behaviours that may possibly undermine the regime is criminalized. The North Korean’s regime best represents how law is used to maintain inequality and governmental control, as only the leader possesses political power and economic resources. If the North Korean’s population does not conform, they will face serious punishments including but not limited to death penalty. Another example can be found in Hong Kong, looking at the Public Order Ordinance (2013), “a public procession may take place if, but only if – the Commissioner of Police has notified the person that he has no objection to the procession taking place or is taken to have issued a notice of no objection”. In short, unauthorized public processions are criminalized and are subjected to imprisonment and/or fine. This section does not reflect the core value of Hong Kong people, which is the freedom of assembly, as stated under Article 27 of the Basic Law, while, to a certain extent, protect the regime with the rights to decline applications of processions which may be deemed to undermine the regime.

Besides the aforementioned social and political aspects, religion is a notable factor that I would like to discuss, as it is believed to be important in the law-making process in the past decades and centuries.

Secondly, religion is one of the deciding factors on which behaviours are criminalized.
Taking homosexual activity as an example, it was made illegal in many countries in various periods in the past. In Roman Empire, homosexuality was legal and Christianity was banned before 313(A). In 313, Christianity was made legal by the Emperor Constantine. 29 years after Christianity came under rule, same-sex marriage was declared illegal by the Emperors Constantius II and Constans, homosexual sex was also declared illegal by the emperors Valentinian, Theodosius, and Arcadius in 390. During the Middle Ages and the Renaissance, the Kingdom of France and the Swiss canton of Zurich, which were heavily influenced by the Roman Catholic Church, instated death penalty against homosexual activities. The United Kingdom also recriminalized male homosexuality with the Criminal Law Amendment Act 1885 under the reign of Queen Victoria (who was also a Christian). In some Islamic countries, such as Iran, Saudi Arabia and Afghanistan, homosexuality is not only being criminalized but is also punishable by death (Bearak and Cameron, 2016). Although there are no direct evidences stating that religion is the only factor behind the criminalisation of homosexual activities, the aforementioned examples and the facts that homosexual activities are strictly prohibited in Islam, Christianity and Catholics, led to the belief that there is a great link between the criminalisation of certain acts and religion. In fact, the Islamic Law (also known as the Sharia Law) itself is “derived from the religious precepts” of Islam, particularly the Quran. In conclusion, behaviours infracting religious beliefs had a high chance of being criminalised in a religious country, especially in the earlier
centuries.

The factor of religion does not really fit into the consensus or the conflict model. First, the laws do not reflect the social value of the whole country, but the value of the Emperors/Kings/Churches. Second, setting up those laws does not bring benefits to the society nor to the governmental power, for example, the emperor does not receive any political or economic benefits by setting up laws based on the bible, instead the law protected the religions concerned.

In my opinion, I would concede that the origin of criminal law leans more towards the conflict perspective in both 19th century and contemporary Hong Kong. In the 19th century, the criminal law protected mainly the Europeans: an example can be the prohibition of Chinese living in the Peak area. Recently, the uprising of the Occupy Central Protests showed the existence of imbalance of power in Hong Kong, where “the minority upper classes control political power”. In fact, I reckon that the conflict perspective is more suitable to describe the world’s situation nowadays. Nearly all countries prioritize national’s interests over citizens’ benefits, regardless of how liberal the country seems to be. The perfect consensus perspective can never be achieved in future law-making, unless a country is perfectly equal, not in war, completely atheism or homo-religious, homo-ethnic, and all of its citizens are highly educated.