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, 29 December 2011
On Foucault and the criminal law
Looking at it, it is easy to see how this links to the account of the birth of the prison in Discipline and Punish (1977) and, in the third stage, to the developing theme of governmentality. It is, on the face of it, a plausible enough account, suggesting how, while the 'core' of the law remains the same, it is supplemented by other mechanisms which gradually change its character. It is not a complete account, for it seems clear enough that new areas of law develop and the legal form also changes in different ways. The challenge then is to develop a theoretical account of the criminal law which is not narrowly confined to the prohibition, but which also includes the surrounding mechanisms.