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.

Sunday, 23 October 2011

On grids

What do these things have in common? Bricks, writing tablets, maps, ledgers for keeping track of financial transactions, the invention of the cardboard box, and the punch cards used by early computers. According to art historian Hannah Higgins these are all examples of 'grids', basic forms of technology that have organised human communities at different points in history and which developed in such a way as to shape how we see and understand the world.

Thus, the invention of the moulded brick (in 9000 BCE)enabled the building of strong permanent buildings, on a pattern of a staggered grid, and the development of towns and cities. Writing tablets, as compressed bricks, enabled standardised forms of writing, pictograms or symbols organised in horizontal or vertical lines or grids. The development of maps was based on grids projected over space to allow its representation. Ledgers, developing from simple abacuses or tallies, allowed forms of accounting to develop, tracking financial transactions or the strengths and weaknesses of the human character over a grid of entries. The cardboard box, perhaps most surprisingly and inventively, is seen to link the revolution in the packaging and transport of goods (starting with Kellogg's cornflakes!), to the development of the container ship and on-demand ordering, the skyscraper and modernist attempts to order and control space and cubist painting. And last of all, the computer punchcard gives rise to the matrix, the computer network that is the internet as a new form of virtual organisation.

This is all very interesting but, you might ask, what has it got to do with the criminal law? Well one of the surprising things about the book are the many references to law. Some are obvious: the stone tablets on which early laws were inscribed, or the move from an oral to a textual culture brought about by printing. Some are more oblique: the use of the Court of Exchequer to illustrate a tally board, or the reform of US shipping laws that made possible the use of closed containers. But more than anything else the argument is suggestive, challenging us to think about different ways or 'grids' in which the law is organised - and to see connections with technical, social and cultural revolutions.

We can see this happening in a number of ways. First, it can shape our language. To talk, for instance, of the trial as a process of calling an accused person to account, is already to appeal to the ledger, to pre-existing traditions of moral accounting. And in criminal law we often talk about concepts as the building blocks and how these fit together in certain patterns or grids to establish criminal liability. Second, it might suggest ways of thinking about the architecture of the criminal law. In modern legal thought this tends to be seen as a hierarchical structure: the general part sets out the foundations, which then support and shape the rules of particular crimes. Communication passes from the general to the particular and back again. What are crimnal codes but grids, attempts to impose order on legal chaos? But laws have been, and sometime even now, are ordered in different ways, according to different 'grids' or logics, and the form we use where lawyers seek to place individuated crimes into different, self-contained, boxes is not necessarily the only, or best way of thinking about law. (And the computer network, or hyperlinks, may challenge these ways of reading and organising law, as it possible to read and experience the law differently. And lastly, more than anything else, these grids are in different ways attempts to order the world, to render social space more readable and accountable and hence governable. But, as Higgins also concludes, grids have their own textures, individuating features and capacities for creative enrichment. They constructs a relationship between order and disorder, and one of the challenges for legal thought must be to examine how this process process comes about in the grid of the modern law.

[The Grid Book by Hannah B Higgins was published by MIT Press in 2009, and is available in bookshops, on library shelves, on the internet - and possibly other kinds of grid too...]

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