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.

Tuesday, 4 October 2011

On Empire

Much has been made recently of the global turn of criminal law. This is seen in the rise of international criminal law, the emergence of bodies of transational criminal law, and even in new kinds of global scholarship. However, while there is undoubtedly much that is new and significant about these developments, a focus on their novelty can obscure a longer history. And if we are properly to understand the emergence and significance of the new developments it is essential that we engage with the history of empire and imperialism.

These thoughts are prompted by a new book on the history of the law of habeas corpus, by Paul Halliday of the University of Virginia. Habeas Corpus, as all first year law students know, is the writ which was used to prevent the unlawful of detention of prisoners, as the judges of King's courts could order the prisoner to be brought before them so that the grounds of detention could be examined. As Halliday points out, this understanding of the use of the writ gives rise to a kind of legal narcissism as Anglo-American judges and jurists congratulated themselves on the use of the writ as a triumph of liberty over tyranny. In place of the conventional hagiography, Halliday studies the actual use of the writ to show how the writ was not animated initially by ideas about liberty at all, but was rather a means by which the king's courts could consolidate their power and oversight over other courts and jurisdictions. However, for me the most interesting part of the argument is in the claim that the history of habeas corpus, in some ways the most quintessentially English legal procedure, is a history of empire and cannot be understood without considering the imperial dimension. This story, Haliday shows, is not quite so glorious, as use of the writ did not extend to slaves in many British colonies, where weak local courts were unable to exercise any real supervisory authority over colonial governors, and where emergency powers allowed the writ to be avoided and many thousands were detained in different places during national liberation struggles. All this is fascinating and an important corrective to simplistic claims often made on the part of the writ. But more important still is the importance of recognising the imperial context as essential to an understanding of the history of the criminal law. The language of the law, its conceptual structure, and the even the definition of particular crimes have been exported from England, as the mother country over many centuries, and used more or less consciously as tools of colonial governance. The study of this history can throw new light on the functions of the criminal law, and on what are often taken to be the achievements of criminal theory. And, of course, are a central if we are to understand the most recent 'global turn'.

[The book is called Habeas Corpus. From England to Empire and was published by Harvard University Press in 2010. It is, or should be, available from all good bookstores.]

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