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Criminal Law Forum

, Volume 7, Issue 1, pp 229–236 | Cite as

The pitfalls of cross-cultural research

  • Stanislaw Pomorski
Book Reviews
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References

  1. 1.
    James O. Finckenauer,Russian Youth 23 (1995).Google Scholar
  2. 2.
    Id. James O. Finckenauer,Russian Youth 23 (1995) at 109.Google Scholar
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    Id. James O. Finckenauer,Russian Youth 23 (1995) at 115–16.Google Scholar
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    Id. James O. Finckenauer,Russian Youth 23 (1995) at 1. By “legal reasoning” we are to understand reasons why the subjects believed the law should be obeyed. Following some views expressed in the earlier literature, Finckenauer distinguishes three types of “legal reasoning” and summarizes his theoretical premise thus: [P]eople (in this case youth) can be expected to behave in accordance with the law because (1) they believe in its moral validity, that is because they believe the law serves some essential social purpose with which they agree (moral validity/obligation); (2) because they believe that laws should be obeyed simply because the law is the law (legitimacy); and/or (3) because they fear sanctions (deterrence), or are acting out of some other motive of self-interest.Id. James O. Finckenauer,Russian Youth 23 (1995) at 8. For an excellent discussion, see Tom R. Tyler,Why People Obey the Law (1990).Google Scholar
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    Finckenauer,supra note 1 James O. Finckenauer,Russian Youth 23 (1995), at 105.Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) at 108–09.Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) at 124.Google Scholar
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    The 1992 sample was much larger, with inmates of correctional facilities representing over one-third of the total; whereas in the first survey inmates represented half the sample. Moreover, the 1992 sample, unlike the first Russian survey, included only male inmates.Google Scholar
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    Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 181.Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 181.Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1 at 183 (emphasis added).Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 201.Google Scholar
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    Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 199.Google Scholar
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    One thesis providing a conceptual framework for this work is the idea that voluntary compliance with the law issues in part from a legal order and justice system which is seen to be legitimate, and is believed to be deserving of respect and compliance. This legitimacy derives from the autonomous consent of those subject to law, and from the perception that legal authorities and procedures are fair.Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 6 (citations omitted). [In the Soviet Union] there was no independent judiciary, and limitations on the power of the state as well as entitlements for Soviet citizens existed more on paper than in reality. As a consequence, the Soviet state and Soviet law did not have these legal foundations in justice, fairness and due process that would be expected to give them legitimacy and moral validity in the eyes of the Soviet people.Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 9. In post-Soviet Russia, “[m]atters have only gotten worse.”Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1 at 19.Google Scholar
  16. 16.
    Over a third of the book is devoted to a discussion of the grim relities of Soviet and post-Soviet law and law enforcement. Professor Finckenauer, somewhat breathlessly, covers a very broad territory and paints with a broad brush in the belief that legal socialization is “very much influenced by the socio-legal environment in which it takes place.”Id. Finckenauersupra James O. FinckenauerRussian Youth 23 (1995) note 1, at 23. Some parts of this discussion are of dubious relevance. According to the 1926 Criminal Code of the Russian Soviet Federated Socialist Republic (RSFSR), an individual who engaged in “socially dangerous” conduct that was not specifically criminalized was nonetheless subject to prosecution under the “principle of analogy”: “the basis and limits of responsibility [were] determined by application of those articles of the Code which provide for crimes most similar to it in nature.” Harold J. Berman,Introduction to Harold J. Berman & James W. Spindler,Soviet Criminal Law and Procedure 22 (2d ed. 1972) (translating RSFSR Crim. Code, 1926, art. 16). Professor Finckenauer properly argues that the doctrine of analogy is incompatible with the rule of law. Finckenauer,supra James, O. FinckenauerRussian Youth 23 (1995) note 1, at 44. It is unclear, however, how this doctrine, formally repealed in 1958, could have influenced the “legal socialization” of Russian teenagers surveyed 30 or more years later. There also seems to be a misunderstanding regarding the doctrine of social danger as an essential characteristic of criminal offenses.Id. Finckenauer,supra James O. FinckenauerRussian Youth 23 (1995) at 47–49. Finckenauer perceives the doctrine as hostile to the rule of law. That is not necessarily so. In systems that allowed analogy: The concept of the socially dangerous nature of the act could be used in two ways: either as a vehicle of expansion, or as a tool of limitation of criminal liability...[A]cts deemed socially dangerous but not formally prohibited by the penal statutes could be punished on grounds that the stature prohibitedsimilar conduct....[A]cts formally prohibited which under the circumstances were not deemed socially dangerous...might not be prosecuted. Stanislaw Pomorski,Communists and Their Criminal Law: Reflections on Igor Andrejew's “Outline of the Criminal Law of Socialist States” 7 Rev. Socialist. L. 7, 16–17 (1981). Thus, once the principle of analogy was abolished, the doctrine of social danger retained only its “decriminalizing” function. Berman & Spindler,supra, at 127 (translating RSFSR Crim. Code, 1960, art. 7, §2: “An action or an omission...shall not be a crime, although it formally contains the indicia of an act provided for by the Special Part of the present Code, if by reason of its insignificance it does not represent a social danger.”). The idea that a criminal offense, in addition to the formal elements spelled out in a criminal stature, must have an antisocial quality under the concrete circumstances of an individual case is not incompatible with the rule of law. Indeed, the idea surfaces, albeit under different verbal garb, in some Western penal law systems.See Model Penal Code § 2.12 (Proposed Official Draft 1962). For further discussion, see Pomorski,supra, at 15–18. There are some factual mistakes as well. For example, contrary to Finckenauer's claim,supra, at 61, lay judges (in Soviet terminology “people's assessors”) sat on Soviet trial courts of all levels, rather than only on “people's courts”, that is, trial courts of the lowest level. RSFSR Code of Crim. Proc., art. 15, § 2.Google Scholar
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    Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 200.Google Scholar
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    See Stanislaw Pomorski,Communists and Their Criminal Law Revisited, 14 Law & Soc. Inquiry 581, 594 (1989).Google Scholar
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    Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 184.Google Scholar
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    Fridrikh Neznansky,New Information on Soviet Criminal Statistics: An Inside Report, 6 Soviet Union 209 (Part II 1979).Google Scholar
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    For further discussion, see Maria LosCommunist Ideology, Law, and Crime 272 (1988).Google Scholar
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    Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1 at 201.Google Scholar
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    Ld. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 208.Google Scholar
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    An extensive bibliography lists a number of works of marginal importance and quality, whereas some key authorities are left out, including F.J.M. Feldbrugge,Soviet Criminal Law—General Part (1964); Berman & Spindler,supra Over a third of the book is devoted to a discussion of the grim realities of Soviet and post-Soviet law and law enforcement. Professor Finckenauer, somewhat breathlessly, covers a verybroad territory and paints with a broad brush in the belief that legal socialization is “very much influenced by the socio-legal environment in which it takes place”Id. Finckenauer,supra James O. Finckenauer,Russian Youth 23 (1995) note 1, at 23. Some parts of this discussion are of dubious relevance. According to the 1926 Criminal Code of the Russian Soviet Federated Socialist Republic (RSFSR), an individual who engaged in “socially dangerous” conduct that was not specifically criminalized was nonetheless subject to prosecution under the “principle of analogy”: “the basis and limits of responsibility [were] determined by application of those articles of the Code which provide for crimes most similar to it in nature”. Harold J. Berman,Introduction to Harold J. Berman & James W. Spindler,Soviet Criminal Law and Procedure 22 (2d ed. 1972) note 16;Soviet Law after Stalin (Donald D. Barry et al. eds., 1977–1979).Russian Youth also includes a chapter on corruption and the shadow economy, but the seminal work of Professor Gregory Grossman, beginning withThe “Second Economy” of the USSR” Problems of Communism, Sept.–Oct. 1977, at 25, has been omitted. Professor Finckenauer also discusses political abuses of psychiatry without citing Peter Reddaway, a leading Western authority on the subject.E.g., Sidney Bloch & Peter Reddaway,Russia's Political Hospitals (1977).Google Scholar

Copyright information

© Rutgers University School of Law at Camden 1996

Authors and Affiliations

  • Stanislaw Pomorski
    • 1
  1. 1.Rutgers UniversityCamdenUSA

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