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
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.