chapter  5
Custom, Tort, and Injustice
Pages 28

This chapter discusses the legitimacy of state intervention. It suggests that in the case of status prohibitions, vice, and consensual crimes prompted by virtuous motives, segments of the population withhold the legitimacy normally granted the elements of criminal law. When positivism came to include the subject's attitude to law, it did so in a grand manner which grossly oversimplified the relation between law and custom. The distinction between tort and crime is not substantive but formal. A sense of injustice pervades the subculture of delinquency. Valour and loyalty achieve the status of customary morals in the subculture of delinquency. Divided public opinion regarding the propriety of prohibiting vice is one of the most important examples of the conflict between law and custom. The abolitionist leans to the view that law should reflect customary morals, whereas the prohibitionist tends to believe that law should serve as an edifying and vanguard institution.