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, 8 December 2011

On criminal law in the welfare state

How does the criminal law change with developments in other areas of state activity? At one level, the answer to this sort of question seems obvious - even if it is something that is barely reflected in criminal law books. As the state regulates new areas, or as modes of regulation change to reflect new types of concerns, it is hardly surprising to find that the criminal law changes along with this. Thus, for example, if the state introduces regulations on the number of hours in the working day, or on working conditions, it is not surprising to find that it also introduces new offences and penalties for the breach of these regulations. The provision of new health or injury-related benefits will be accompanied by the creation of new offences for obtaining these benefits in a fraudulent manner. And providing for, say, univeral schooling or vaccination will bring penalties for failure to attend school or to vaccinate your child.

So, one answer to the question of how the criminal law changes in the welfare state is that by increasing the state's capacity for doing good you also increase the capacity for harm - for the breach of the new norms of social activity. The criminal law grows as these new offences are added on to the existing body of crimes - for it does not, of course, become less criminal to murder or steal. These are sometimes referred to as welfare or regulatory offences: not truly criminal, even if it is sometimes conceded that they are necessary to modern social life.

But it is not just a matter of there being more laws, or laws of a different type - a 'welfare' paradigm that supplements the core paradigm of 'autonomy'. There are other changes as well. The character of existing offences might change - different types of activity (dispensing drugs, performing certain services) might be seen as falling within the scope of unnacceptably risky conduct, if performed in certain ways. The scope of omissions liability also changes to reflect the broadening range of duties. Second, new forms of liability develop. The best known example of this is the rise of strict liability - liability without fault, that developed as way of allocating responsibility for the performance of certain activities onto the person or body who was best placed to prevent harm. Thus a food manufacturer, for example, would have liability imposed on them for supplying food which was dangerous to public health, because they (and only they) were best placed to take the necessary precautions. The focus of this kind of liability was on prevention - the avoidance of harm - and the function of the law was less the prosecution of wrongdoers than seeking to make those who held certain positions, or engaged in certain activities, aware of their responsibilities. A new kind of citizenship, if you like. And if this is the case then these changes are not merely adding new norms, but are actually changing the character of the law as well.

Why does this matter? One answer is that it might shed a new light on debates about criminalisation and over-criminalisation. Criminalisation is linked more specifically to political perceptions of the proper function of the state, and the role of the criminal law in pursuing this. And from this perspective attempts to limit the scope of the criminal law must be seen as part of the attack on the welfare state - decriminalisation because sphere of our public responsibilities is being dismantled. (Though of course it has been argued that this large scale privatisation might actually increase the demand for criminal law as marginalised social groups are no longer being integrated into community through welfare provision - but this is a matter for another post). Either way it clearly underscores the point that thinking about the criminal law requires that we also think harder about its relation to the state.

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