On 'The Spirit of the Laws'

Montesquieu's The Spirit of the Laws (1748) is often regarded as one of the founding texts of modern political theory. It is a wide ranging discussion of the impact of different forms of government - monarchies, despotism, republics - and factors such as climate and geography on the forms of law and the protection of liberty and security. While much of the book might now be regarded as of mainly historical interest, it is a work that nonetheless still raises some interesting questions about the scope and form of the criminal law.

So for example in Book VI he raises the question of the relation between different governments with respect to the simplicity of criminal laws. His conclusions here are surprising, but seem intuitively to have a certain degree of force. He suggests that despots will, on setting themselves up in power, immediately think of reducing the number of laws, but that in monarchies and republics, which value the honour, fortune and liberty and life of the subject, there will be more laws and more formalities in order that these can be protected. Likewise, he suggests, the form of judgment will be more complex in these societies, as judges must give reasons for their decisions. He even suggests that it may be proper to throw some delays into the process in order that the people may grow calm and give judgment coolly. While these kind of claims cannot be regarded as conclusive, and should be the starting point for further investigation, they should give us pause for thought in addressing the issue of over-criminalisation. Might it be that to reduce the number of laws would be to take the first steps towards a new kind of despotism?

Kirchheimer on omissions

The name Otto Kirchheimer is reasonably well known in the fields of penology and political theory, but is not, I suspect, well known to criminal lawyers. A member of the Frankfurt School of critical theory, he left Germany (along with other members of that school) in the 1930s to escape Nazi persecution. He then worked at a number of US universities, though never becoming as well known as contemporaries such as Herbert Marcuse.
In penology his reputation is founded on his seminal work (with Georg Rusche) on Punishment and Social Structure (1939) which developed a marxist interpretation of the history of the prison in terms of its relation to the labour market. They argued that prison population increased at times of economic crisis as a means of controlling labour (the unemployed), and that prisons were a means of training and extracting value from the lumpenproletariat through forced labour. In the field of political theory he is best known for his work Political Justice (1961), which looks at the use of trials for political ends - in particular the show trials of the Soviet Union. This is a book that has recently been attracting renewed, if specialised scholarly interest with the revival of interest in the trials of the perpetrators of atrocities and theories of the criminal trial.

Given this background, it is then perhaps something of a surprise to come across his name in the Harvard Law Review of 1942 writing on the topic of omissions. Not only that but the article begins very much like a conventional law review article with a scholarly discussion of the historical sources of liability for omissions in Roman law and the theological writings of St Thomas Aquinas, before moving into discussion of causation and omissions. But the real treat of the article is that it combines discussion of the legal sources with an awareness of the changes in political institutions and social beliefs that have shaped the scope of the law of omissions. Thus, instead of the kind of discussion normally found in legal journals which sees the problems of omissions liability as an intellectual puzzle or problem of moral philosophy, Kirchheimer demonstrates how changes in the liability of parents for the neglect of their children are linked to the English poor laws and their reforms, or how the abstract examples loved by moral philsophers fail to relate to the acutal cases in which situations of omission liability arise. In all these cases Kirchheimer shows an awareness of, and sensitivity to, different kinds of social relationships and the social context in which activities take place. What emerges then is a sophisticated and rich comparative and historical discussion of the problem which, if lacking the overt Marxist themes of his other works, demonstrates how legal analysis can be linked to social questions.

What is more Kirchheimer has the rare distinction, especially for jurists and political theorists, of having a street named in his honour (in Bockingen). But it is a distinction that seems peculiarly merited.

On his death his papers were left to the library at SUNY at Albany. These, and further biographical details, can be found here: http://library.albany.edu/speccoll/findaids/ger006.htm

On the trial of Madeleine Smith (1857)

There are few murder trials that are better known in the history of  Scots law than that of Madeleine Smith in 1857 which has been the subject of books, plays and even Hollywood films.



A sketch from the trial



A young girl of respectable background was accused of the poisoning of her lover, Emile L’Angelier. At the trial personal letters were produced as evidence by Crown which implied a sexual relationship between the couple, a fact which both scandalised and fascinated respectable middle class opinion of the time. The focus in the literature on this trial to date has been on the character of Madeleine Smith, on mistakes made by the Crown or the quality of the defence, or the reconstruction of how, if she did it, the fatal deed was carried out. Yet the intense speculation that has swirled around the question of her guilt or innocence – an issue left conveniently unresolved by the verdict of not proven – has stood in the way of developing a more detailed understanding of the legal and social context of the case. Fortunately a new book on the case, by social historians Eleanor Gordon and Gwyneth Nair takes a new, and refreshing approach to the case. Largely foregoing speculation on the issue of Smith’s innocence or guilt in favour of a more contextual approach, Gordon and Nair use the records of the trial to investigate the social mores and customs of Victorian Scotland and thereby throw a great deal of new light on the case.

Using Smith’s letters to l'Angelier as an entry point, they comment on shops and shopping, leisure activities, dress and fashion, sexual mores and so on - and along the way they briskly correct the claims or misunderstandings of previous writers about the case, based on their greater depth of knowledge of this social context. In addition, they provide an account of Smith’s life after the unlikely not proven verdict, tracing her marriage into the social circle of William Morris in London and subsequent emigration to the United States. And while this part of the story is not unknown, it seems less unlikely in the light of the more detailed understanding that they offer of her character and earlier life.

These kind of case studies have become increasingly common as social historians have woken up to the fact that the records of certain trials - and especially murder trials - provide an invaluable record of a particlar social moment. This is clearly more interesting than the speculations about motive, method and guilt that have dominated writings in this genre up until now. This is good news for lawyers too, in expanding our all too meagre knowledge of the history of our own system, even if it runs the risk of feeding the obsession with murder that can distort our understanding of the criminal law.

[The book is called Murder and Morality in Victorian Britain. The Story of Madeleine Smith, and was published by Manchester University Press in 2010]

On criminalisation

If a lot of the recent debate in this area has been about over-criminalisation and looking for grounds or principles by which the scope or exercise of the criminal law might be constrained, it is equally important to think about reason to criminalise. What conduct should be criminalised and why? There are two main strands in liberal thought about these questions, though they tend to come together in contemporary thought. The first derives from, and is animated by, John Stuart Mill's famous 'harm' principle: that "the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others." (from On Liberty, 1859).

In this tradition efforts have focused on attempting to define the concept of harm: what is harm? does it include forms of potential as well as actual harm? Are forms of paternalism justified? And so on. This has achieved its most complete modern expression in the four volume work of Joel Feinberg (The Moral Limits of the Criminal Law, 1985). The alternative approach - legal moralism - argues that we should begin from the idea of wrongdoing, since it would be unjustifiable for the state to punish a person for conduct which is not morally wrong.
How do these come together? Well, advocates of the harm principle concede that a criminal law which punished all harmful conduct would be too broad and therefore seek to introduce a limiting principle, which is that only wrongful harms should be subject to criminal punishment. Conversely, legal moralists concede that not all wrongful conduct (lying, cheating at games) should be the subject of the criminal law because, once again, it would be too broad, and that therefore the criminal law should be concerned only with harmful wrongs.

While it is clear that there are still differences between the two positions (a harmful wrong may not be the same thing as a wrongful harm), I wonder if something is missing from these kind of debates. The aim is that of determining the proper scope of the criminal law, but there is not much discussion of the criminal law itself, except as a means for the imposition of punishment (which requires special justification). The criminal law is surely more than just an aggregate of individual wrongs, that is to say that it would seem be more than just the sum of its individual parts.
There seems to be some acknowledgement of this in theories which suggest that the criminal law should be concerned with forms of 'public' wrong, in that what is being sought for in these formulations is to capture something about the public role or function of the criminal law. All of which brings me back to the formulation of Neil MacCormick, discussed in an earlier post, that the criminal law should contribute to securing the conditions of civility and social peace. This kind of formulation seems to suggest that the criminal law has a more positive social function than just the protection of a series of individual wrongs, and one of the tasks of a theory of criminalisation must be to begin to tease out what this function is.

On televising criminal trials

I, like many others, am fascinated by criminal trials. I can pretend that my interest is professional, that I need to read the details of the latest trial in order to keep up to date with the law, or that my interest in notable historical trials is linked to my interest in the history of the criminal law, but deep down there is a desire to hear the stories of crime, of how people live, or in the expectation or hope that there will be some coup de theatre in the trial itself.

Of course I realise that most trials are not like this; more, that even those trials which are supposed to be dramatic are mainly rather dull, as a succession of witnesses are called to testify about mundane facts, and the standard of advocacy rarely lives up to the heights of the great dramatic cross-examinations of fiction. But I keep coming back for more, which begs the question of what it is that we expect from trials, or even what they are supposed to do.

I ask this question because the Justice Secretary announced last week that he was proposing to relax the restrictions on the filming of criminal trials, specifically to allow the filming of sentencing. http://www.guardian.co.uk/law/2011/sep/06/ban-filming-courts-to-be-lifted?INTCMP=SRCH
This inevitably raises more questions than it answers. The justification offered for this is that it will improve transparency in the criminal justice system, making public the reasons for sentences, and will thereby bolster public confidence. But as has been pointed out, this seems very one-sided: we only hear the judicial reasons for the sentence, and there is no legal argument, no balancing of this with evidence for the defendant. While I recognise that the filming of witnesses, defendants and other participants raises complex legal issues - witness the difficulties run into by a TV production company in attempting to film a Scottish trial - the question goes beyond such technicalities. This approach is consistent with historical attempts to control the message of the court process, through symbols, costumes, architecture and so on. But there are (at least) two significant problems. First, from the point of view of TV, it may just not be very entertaining. We are used to our TV with a bit of glamour and excitement. Even so called 'reality TV' is staged and edited to make viewers come back for more. But seeing one sentencing hearing on TV may be very much like any other, in the absence of more detail or argument, and so public interest may be low. Second, trials are a moment of public reckoning, as the report suggests, but this is not only about the moment of the public communication of disapproval. Trials are a process of communication, of public calling to account, but this crucially requires space for answering. It is not just that the person accused is answerable, but they should be given opportunity to contest the charges and the evidence. Showing a distorted picture of this process will not enhance public understanding of criminal justice because its own understanding of the process is flawed.

On over-criminalisation

For many years criminal law theory was obsessed with the questions of punishment and responsibility: how could punishment be justified, what were the conditions under which a person might be responsible for their actions, and how this conception of responsibility might structure the criminal law. More recently, however, interest has turned to the question of criminalisation: specifically, what can legitimately be criminalised and why? This is, in other words, a turn to the content of the criminal law. This has been prompted, it seems, by fears over the increasing over-reach of the state, or the use of legislation creating criminal offences as a panacea for all evils - and in this context it is often noted that over 3,000 new offences have been createthey the UK parliament since 1997. Nor is Scotland immune from this development, as a new parliament means new offences. It is hard to put a precise figure on the number of new offences created, but most estimates suggest that the decade since 2000 saw several hundred offences created by the Scottish parliament.

New parliament, new crimes?

But does this amount to 'over-criminalisation', as some have contended? Well it depends on your measure, and this is where things get notoriously hard to judge. Having lots of offences on the books might looks bad, but if few are actually enforced, then this seems more like a problem of bad legislation or an over-active parliament than over-criminalisation. By the same token, it is conceivable to have a system consisting of a single offence so brouad (do no wrong!) that it could could be enforced in a draconian manner. So should we measure by the number of offences or something else, like the number of people prosecuted in any given year, or these actually convicted? And even then would there be a problem if punishments were minor and treated as such by members of society? Such questions go to the heart of theoretical issues about the criminal law. I cannot begin to answer them all here, but against the grain of much recent discussion of these issues, which focuses on the nature of wrongs and wrongdoing, I want to suggest that a crucial factor in making such judgements must be an understanding of the function of the modern criminal law. In one of his final publications, Neil MacCormick wrote that the criminal law should "contribute to securing the conditions of civility and social peace, thus sustaining civil society". That is a lot to ask, but if it is not too much to ask, then we may find that we do not have too much criminal law.

On the Ruins of Time

For those interested in the oblique, it is worth looking at Andrew Amos' On the Ruins of Time as Examplified in Sir Matthew Hale's History of the Pleas of the Crown (1856). The title of the book gives almost no clue to the modern reader as to its contents, but it is an erudite and critical history of the criminal law that would scarcely be out of place in more modern reading lists.

Amos himself is perhaps slightly better known: first Professor of English Law at University College, London (1828-34), a member of Criminal Law Commission between 1834 and 1843 to investigate the codification of the criminal law, and later Downing Professor of the Laws of England in the University of Cambridge from 1848 until his death in 1860. (There is an entry in the Dictionary of National Biography and also one in wikipedia). This kind of background would suggest someone who was a member of the legal establishment - well connected and scholarly - and this background is reflected in some of his other writings, such as a treatise on the law of fixtures and a work on the English constitution in the reign of Charles II.
But what of the Ruins of Time? What makes it so unusual? On the face of it, the book is an argument in support of the codification of the criminal law - and it is hardly surprising that Amos, as a former (and disappointed) Law Commissioner, should be advocating this. What is surprising is the form that this takes - and perhaps it is the oblique nature of his approach that appeals. The first thing is the odd title. The 'Ruins of Time' apparently refers to a poem of the same name by Edmund Spenser (of the Faerie Queene), in which a nymph surveys the ruins, the fall from grace, of the city of (London) and moralises on the transitory nature of human achievements. Here there is no nymph, but the ruins being surveyed are those of Hale's great work.
Why Hale? Here Amos' view is that, while Hale's work is the great achievement in the area of English criminal law, the passage of time has diminished this utility. Interestingly he refers to Hale as a 'Pope of Criminal Law', someone who might by the authority of his position spare others the difficulties of thinking for themselves or resolving contradictory opinions. And this points to another of the unusual features of the book, which is Amos' biting sarcasm, and his willingness to use wit and satire in his criticism of the criminal law - though barely masking his own disappointment and frustration.
The rest of the book is perhaps more conventional in structure - indeed it follows the structure of Hale's work. But it is rather more than just an argument for codification, as Amos engages in immensely learned discussion of the history and practice of different areas of the law.
It is a shame that a book such as this has been so neglected - though perhaps not surprising given the obscurity of the title - and it is too easy to put it down as the cri de coeur of a disappointed law commissioner. The book itself is now easily accessible on Google books, and is worth spending a little time with it.
[One last aside. Amos' son, Sheldon, followed in his father's footsteps, becoming a lawyer and professor of jurisprudence at University College, London - and I shall write about him in another later post]