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.

Wednesday, 21 December 2011

On governing through crime

How central is the criminal law to exercise of state power? One way of thinking about the centrality (or not) of the criminal law to the state is the idea of 'governing through crime'. This is a phrase that was coined by the Berkeley criminologist, Jonathan Simon, as a way of describing what he saw as recent trends in the US criminal justice system. It was the title of his book, and is also an excellent blog which documents recent events and discussions, particularly in relation to US penal policy.

For Simon the central idea is that of "the use of crime to promote governance by legitimizing and/or providing content for the exercise of power". This rather abstract formulation is broken down into three elements. First, that crime becomes a strategic issue for government, which is to say that solutions to the problem of crime are seen as primary issues of concern for those in positions of power. Second, crime is used to legitimate interventions that have other motivations. Presenting something as an issue of criminal law, in other words, becomes an easier way of achieving other political ends or programmes. Finally, he suggests that the technologies and discourses of criminal law become more visible features of all kinds of institutions. It seems then as though the criminal law 'colonise' these other institutions, tying it in to education or health or immigration.

These is a useful set of definitions which Simon develops with one eye on his analysis on contemporary developments in the USA, and can explain much about the process of criminalisation. But I wonder if it is an idea which is capable of more general application, as a way of capturing different ways in which criminal law is used as an instrument of governance over time.

What I have in mind here is something like Douglas Hay's analysis of eighteenth century criminal law, which seems like an excellent example of governing through crime, even if it would fail to meet the criteria identified by Simon. Hay argued that criminal law was central to the governance of eighteenth-century in England. First, the law was used to create a series of new offences to bolster and protect the regime of property rights of the ruling class. Second, that same class used the law in a way to legitimise their own authority through a combination of, on the one hand, extreme severity (condemning offenders to death), and on the other, the use of mercy to reprieve all but the most serious offenders. The key point then is that the delicate network of social relations was sustained through the criminal law. This is surely governing through crime, par excellence, even though it clearly lacks any of the features identified by Simon.

What this points to, I think, is a need to generalise the idea of governing through crime, to take it beyond the the temporal and spatial limitations of Simon's usage. It is an idea which requires us to think about different kinds of projects of governing through crime, or of how the criminal law integrates in different ways with different kinds of governmental project. This might mean, as Simon suggests, that it links with education, or for Hay that it is linked to a particular regime of property offences. And it might mean that in some times and places, the criminal law is not central to the state project at all. That might be a bad things for the self image of criminal lawyers and criminologists, but would surely be good for everyone else.

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