Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 31 August 2011

On Bentham

Readers with sharp eyes (or too much time on their hands) will have noticed that the font used on this blog goes by the name of Bentham. And how indeed could I have chosen any other font, for Jeremy Bentham is the great iconoclast of the common law system.

Bentham is well known today as a founder of utilitarianism. Michel Foucault and others have brilliantly analysed his ideal prison, the panopticon. This device was designed to allow the continual and perfect surveillance of prison inmates by a guard located inside a central tower where they could not be seen by those they observed.
Although this was never built as a prison, it stands today as a symbol for the modern suveillance society. yet in addition to all of this Bentham was an energetic and persistent critic of the criminal law of his day, and there is much we can learn from his extensive writings on the topics of criminal law and codification - rambling and digressive as they often are.

One of the most striking features of Bentham's writings (see for example the Introduction to Principles and Morals of Legislation) is his furious desire to divide and classify. He begins from a general principle (of utility) and then engages in a continual series of distinctions and separations, inventing his own scientific vocabulary to explain the classes and categories he identifies. Every so often he then runs into the problem of a clash between his scientific terminology and the accepted legal or popular language (see e.g. his category of heterogeneous or multiform offences p.190). This raises a problem which the criminal law continues to grapple with: is it better to retain traditional language or categories even where they use an archaic or out-of-date language (malice aforethought, wicked recklessness, larceny and so on) or should the law be modernised? The answer, of course, may be that it depends on the term in question. The use of certain terms changes with the times - the legal defiinition of rape now includes anal and oral penetration without any loss of the stigma attaching to the crime. But who would mourn the loss of the term 'larceny'?

But the more interesting questions might be these ones. First, how is it that certain concepts or categories acquire a public acceptance or moral weight? It has always seemed odd to me that the phrase 'grievous bodily harm' the creation of the Victorian draftsman in the Offences Against the Person Act 1861 has entered popular usage, in spite of its strained, technical definition. Does this tell us anything about the legitimacy of the criminal law?

And second, what if society and the law change? Bentham regarded offences against trust as heterogeneous offences that could not be classified elsewhere. But if, as sociologists suggest, trust is a central feature of modern society, should this alter our perception of its place in the classification of the criminal law?

[Anyone interested in learning more about Bentham (the philosopher not the font) should look at the webpages of the Bentham Project: http://www.ucl.ac.uk/Bentham-Project/]

Sunday, 28 August 2011

On murder

I have often wondered about the annual homicide rate in crime fiction. In the small jurisdiction where I live there are around 100 recorded homicides per year. A lot, though considerably fewer than in some US cities, which may perhaps be due to the fact that the weapon of choice here is the knife rather than the gun. But what about in the fictional Scotland? My hunch is that if we were to count up all the homicides in Scottish crime fiction the annual rate would far exceed this, as our authors show an ever greater willingness to stab, bludgeon, poison and even shoot their own fictional creations to death. And we lovers of tartan noir and kailyard crime lap it up. What's more, we are complicit in the growing rate of fictional homicide in other countries as the appetite for Scandinavian, Italian and even the original American noir attests. But why this focus on murder, and not other crimes?
This is one of the questions addressed in Judith Flanders' book, The Invention of Murder, which came out earlier this year http://www.harpercollins.co.uk/Titles/53228/the-invention-of-murder-epub-edition-judith-flanders-9780007352470. Beginning with the Ratcliffe Highway murder in  London in 181 and finishing with the Ripper murders in Whitechapel at the end of the century, and looking at celebrated Victorian muderers from Burke and and Hare to William Palmer to Madeleine Smith she explores the factors that led to the modern fascination with the crime of murder.
The rise of murder is traced  on the one hand to the combination of organised policing, the rise of criminal detection and the birth of the emergence of the modern adversarial trial. But hand in hand with the was the emergence of the modern press and publishing industry, which sold papers through their sensationalised coverage of crime and trials. And other authors were not far behind producing novels that were often little more than fictionalised accounts of the more serious crimes. And hence our obsession with murder.
But here's a thought. Could we have crime fiction centred on other crimes? On theft? Or fraud? People traficking? Anti-social behaviour? Should we ask that our crime authors be more imaginative? And perhaps the same is true of criminal law too? What would the law look like if we did not place homicide at the centre?