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.

Thursday, 29 September 2011

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?

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