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This paper might look very different had I been asked a sensible question. Instead, I was told that the focus of the program for which this paper was originally prepared was "Does law matter?" and that my particular assignment was to discuss the question of whether the criminal law mattered. Of course criminal law matters. One hardly need be a committed functionalist to conclude from the dense net of criminal laws that envelop modern societies that criminal law must matter or else we would not have so much of it or, conversely, because we have so much of it, it must matter. And if this abstract exercise were not satisfying, one could go to any prison and ask the men or women therein whether the criminal law mattered. They would tell you it did; if it didn't they would not be forfeiting years of their lives. Moreover, there is a long tradition of research on the deterrent and other preventive functions of the criminal law (Lempert 1981-82; Gibbs 1975). The evidence, ranging from Andenaes's ( 1966) anecdotal evidence of a crime wave during a Montreal police strike to the most sophisticated modern quantitative research (e.g., Loftin, McDowall, and Wiersma 1992) is that people's actions are sometimes ordered at least in part by fear of criminal sanctions, and it may be that other aspects of the criminal law, such as its presumed educative effects, also affect behavior.


Copyright © 1998 by Northwestern University Press and the American Bar Association. Published 1998. All rights reserved.

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