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.

Friday, 4 November 2011

On paradigmatic crimes

What is the crime that best exemplifies the criminal law? This might seem like a bit of an odd question, but there is fashion in legal theorising to seek to identify the typical or paradigmatic crime, in the sense of that which best illustrates all the normative features of the criminal law - that is to say that it should be capable of operating as a model for developing a proper understanding of the criminal law as a body of rules. There are a range of candidates for this, ranging from blackmail to murder to treason. I don't want to go into the reasons why these particular crimes have been put forward, or to nominate a candidate of my own, largely because I think that the exercise itself is rather odd. Why? Well it seems to rest on two key assumptions, neither of which seem to me to be particularly warranted.

The first is the idea that there is or can be a single normative structure to the criminal law. If this were true it would imply that this structure of liability, of defining the scope of the wrong, and relation to defences would apply to all individual crimes  And second is the idea that there are 'core' offences, whose meaning and scope is so settled that one can stand for the whole - with the consequence that all others might be measured against it and found wanting. By contrast my understanding of the criminal law is that its meaning and function as a body of rules is constantly in flux, and that as it, to a great extent, represents the accretion of crimes legislated or created over time it is hard to identify a single principle or structure. Equally, there are different patterns of liability in the development of different crimes such that there may be no readily identifiable set of generalisable features.

That said I wonder if there is something which can be redeemed from this exercise, some sense in which it might be useful to think about paradigmatic crimes. My thought here is that just as different historical periods had distinctive ways of thinking about the nature of the criminal law they might also have had distinctive or paradigmatic crimes. This might be so in the sense that certain crimes were enforced more regularly in certain periods, or the defence of certain interests was treated as being of paramount importance. Thus, offences against property made up much of the 'Bloody Code' in England in the eighteenth century and have been described by Douglas Hay as being central to the operation and even the structuring of the law in that period. Second, certain crimes or types of crime only emerge at particular historical points, and might reflect changes (paradigm shifts?) in the nature of the  law. One key example here is the law of attempts which, notwithstanding older roots, emerges with a new subjective focus in the early nineteenth century as law and police shift towards the prevention of crime. And finally particular crimes might be paradigmatic of the fears or obsessions of a certain period, as arguably the fear or terrorism and incivility are impacting on the crimianl law today. Exploring the idea of paradigmatic crimes in these kinds of senses offers opportunities for opening up to analysis historical patterns and shifts in the use and function of the criminal law, which can help us better understand the place we are in at the moment. And who knows, this might also lead to a paradigm shift in ways of thinking about criminal law.

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