On guns in America

I have had a couple of further thoughts on last week's post on homicide in America, prompted in part by the NRA press conference on Friday suggesting that it was necessary to have armed guards in every school. Both of these relate to the question of trust.

The first point is quite an obvious one and follows on from the conclusion about there seeming to be a relation between low homicide rates and an atmosphere of social inclusion and trust. If this is right, it is hard to see how a proliferation of armed guards is likely to be a solution. Indeed, it seems likely to me that this would create an atmosphere of heightened distrust - everyone would be viewed as a possible 'bad guy' or threat with the result that any possible short-term gains in security would be bought at the cost of longer-term insecurity and growth of distrust.

The second point is more fundamental and goes to the rationale of the right to bear arms, as recognised in the second amendment to the US constitution:

 "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

As many people have pointed out before me, the original rationale of the second amendment appears to be related to the right to raise a militia. The origins of this right can be traced to the debates of the eighteenth century about whether the state should be permitted to have a standing army and to raise taxes to support that army - in particular as the British rulers of the American colonies had taxed the citizens to support the presence of the British army. In the circumstances of 1791, it is not then particularly surprising that the new states linked freedom to the right to a militia - which thus necessitated that all prospective soldier/citizens should possess and bear arms. The broader context was thus one of distrust of the British state (and, it is worth pointing out, a situation where homicide rates were very low).

The issue now appears to be very different. It is very clear that, for some Americans at least, the issue remains that of trust in government - though now it is a domestic government which supports a standing army. The question, though, is that of how to rebuild that trust and whether the presence of guns is likely to contribute to the building of trust or further undermine it.

On homicide in America

It is just one week since the horrific shooting of school children and teachers at Sandy Hook elementary school in Connecticut. In that time a lot has been written about the possible causes of the massacre the need for gun control, and what should be done to prevent similar events occurring in the future. It is with a certain degree of reluctance that I enter this debate, for both the killing itself and the topic of gun control are highly emotive subjects, but there is nonetheless something to be learned from taking a broader perspective on these events.

Map of the world by intentional homicide rates (from Wikipedia)

A starting point for discussing this is that the rate of homicide in the US is high -  much higher than in any other affluent first-world democracy - and thus that incidents such as the Sandy Hook shooting have to be seen in this context. There has been a slight decline in the homicide rate over the first part of this century, but the overall pattern suggests that homicide rates have been higher in the US than in other western countries since the middle of the nineteenth century.

One explanation of this is often seen in the availability of firearms. A useful starting point is this map which shows rates of gun ownership and homicide by firearm worldwide. This makes it clear in a graphic way that there is some link between the availability of firearms and firearm homicides . This is hardly surprising. The availability or accessibility of certain weapons is going to be linked to violence caused by those weapons. If gun ownership is severely restricted then one would expect to see fewer homicides by firearms simply as a matter of opportunity. Thus, the map shows that while the US has one of the highest rates of gun ownership, it does not have the highest overall rate of firearm homicides. And this is something critics of proposed measures for gun control have been keen to point out: there are societies with high levels of gun ownership but a reasonably low murder rate; or conversely there might be a high murder rate in certain countries but low gun ownership - and so that murders are committed in other ways. However, it is also worth noting from the map that the percentage of all homicides committed by firearm is high in the US.Overall then gun ownership might make it easier to commit certain kinds of homicides, but do not necessarily offer a causal explanation of high rates of homicide. This might be an argument for certain kinds of gun control, as a way of reducing opportunity, but these kind of measures would not necessarily lead to a decline in the overall rate of homicide in the US.

An alternative and illuminating perspective can be found in Randolph Roth's brilliant book, American Homicide. This is a wide ranging historical survey of homicide in the US from the colonial period - when America had one of the lowest homicide rates - to the present day. Roth is sceptical of claims that the rising homicide rate can straightforwardly be linked to such factors as the relaxing of carrying concealed weapons laws or the availability of drugs or alcohol, pointing out that there are countries which consume drugs or alcohol at higher rates than the US yet have lower homicide rates. Instead he identifies four factors that are associated with low homicide rates:

• A belief in stable government and that legal and judicial institutions are unbiased;
• A feeling of trust in government and the officials who run it;
• Patriotism, empathy and fellow feeling arising from racial, religious or political solidarity;
• The belief that the social hierarchy is legitimate, that one can be reasonably content with one's place in society or the opportunities to change it, and that one can command the respect of others without resorting to violence.

These are perhaps unsurprising - people are less less likely to resort to homicidal violence when they trust in legal and political institutions, when they feel that they have a valued place in society and when all groups have equal respect and access to social goods. And interestingly they point to the importance of law - but not as a mechanism that can reduce violence through the deterrent effect of harsh punishment. Law is instead important as a background institution that can secure social expectation and opportunity and generate trust and respect between citizens.

[You can check out the data at the historical violence database]

On 'word crimes'

A curious characteristic of nineteenth century criminal law was the criminalization of language - so-called word crimes - as seen in the unholy trinity of sedition, blasphemy and obscenity. This might seem counter-intuitive: this was, after all, a period of political liberalization and increased respect for individual liberty. But paradoxically it is precisely this liberalization that lies behind the expansion of the criminal law. On the one hand, increasing political freedom and the relaxation of restrictions around the printing and publishing of books and periodicals led to anxiety about the social impact of 'subversive' speech and writing: what were the servants reading and what effect would it have on them? And on the other, the focus on individual responsibility in the criminal law made it possible to expand criminal regulation to these areas by making the intention of the author central to the question of criminal liability.

While the precise development of each of the three crimes is slightly different, there is a clear pattern. They are all old offences, which were of little practical importance until the late eighteenth and early nineteenth centuries. They were each given new life in response to social and political developments. They were used sporadically throughout the nineteenth century, particularly at moments of political and social unrest and (with the exception of obscenity) fell into a gradual decline. There are also clear structural similarities in the way that the crimes were defined in the modern law.

Tom Paine's The Age of Reason:
Seditious in 1792

The origins of the crime of sedition can be traced back to Roman law, where it was understood as a form of violent insurrection that was related to treason. But by the late eighteenth-century it had become the crime of the crime of speaking or publishing words which criticized the sovereign or brought the existing government or laws into contempt. In England the law of seditious libel was used in the wake of the French Revolution to prosecute radicals, such as Thomas Paine who had written books or given speeches arguing for political reform. In Scotland the use of the law was even more draconian, with members of the Society for the Friends of the People convicted for sedition and transported for 14 years. This use of the law was fraught with difficulties as those prosecuted would frequently argue that what they had said or written was not seditious in intent - and juries would occasionally even acquit. So as the immediate political tensions of the 1790s and the Napoleonic Wars passed, the law came to be used in a more limited way. Sedition was still used to prosecute political dissent, but instead of a general focus on the seditious content of the language, definition of the crime came to focus on the potential impact of the language to cause immediate public unrest and the the intention of the speaker or author - whether they knew or ought to have recognized that disturbance was a likely cause of their conduct. The modern crime was thus less about language that might undermine society, but language that might incite unrest. The crime was rarely used in the twentieth century and was abolished in 2009.

The Freethinker
Blasphemous in 1883

Blasphemy was likewise an old crime. Its modern origins lie in the separation from the crime of heresy in 1656. While heresy was a crime against God, it was only a crime under ecclesiastical law. Blasphemy, by contrast, was understood as a crime against human law because attacking the christian religion was seen as an attack on those bonds which held civil society together. In this form there had been occasional prosecutions of blasphemous writing in the seventeenth and eighteenth centuries, but the crime was regarded as a minor one, and of little practical importance until the prosecution of the bookseller William Horne in 1817. Although these prosecutions were unsuccessful, this established a patter for the use of the crime in the nineteenth century to prosecute writings of religious dissenters and freethinkers. The core of of the crime was less in the content of the beliefs expressed, than the tendency of the the words - the manner and context in which they were expressed - to undermine society. The last successful prosecution for blasphemy was in 1922 and the crime was abolished in 2008.

Obscene libel was also a crime at common law, but the modern law has its origins in the Obscene Publications Act 1857. This retained the common law definition of obscenity, but for the first time separated sexuality out as an area of special concern and gave the police new powers to seize and destroy obscene material. The test of obscenity laid down in Hicklin (1868) had two central characteristics. First, that the material should have a tendency to deprave and corrupt. This was directed at the effects on the individual, not necessarily as matter of literally depraving or causing immediate arousal, but of how the text or image as a whole could be interpreted and its longer term perverting effects. It was thus concerned with imagination and interpretation. Second, it was specifically directed at the need to protect those who might be vulnerable to such influences —whether women, children, or (in the notorious formulation) domestic servants. In this version the law has survived to the present day, with the test for obscenity even being reproduced in recent legislation criminalizing extreme pornography.

What do they have in common? The first thing is that the modern offences are directed less at the content of the beliefs than the tendency of the expression of the beliefs to undermine society. In each case it is recognized that it might be legitimate to express those beliefs - political or theological debate, or artistic expression - but that in certain circumstances, with a certain intent, that these forms of expression might be dangerous. It is the tendency of the beliefs to undermine society that is crucial, rather than their actual impact. In sedition and blasphemy the crime is concerned with the impact on society; in obscenity law it is concerned with thecorrupting impact on the individual. But in each case the structure of the offence is the same. And all are concerned with the imagination: the imagination of the vulnerable reader or listener, who may not be able to resist, as well the ability of the authorities to imagine the worst.

On violence and modernity

One of the aims of the civilizing process is that of reducing, even eradicating violence. According to writers such as Elias, an effect the process of state formation in western societies and the gradual change of manner and sensibilities, was that of changing our idea of civilized conduct, making modern man more humanitarian. And this insight seems to be borne out in various ways in historical studies of crime. Levels of interpersonal violence and homicide rates are in decline. There may be disagreement over the precise reasons for this development, but little disagreement over the fact that it is taking place.

What does this mean for criminal law? Again, certain parts of the story seem clear. The criminal law was used by the state as an instrument for reducing social violence. In many cases the norms already existed, and what changed was the enforcement of the law - which gradually changed the social understanding and expectation of what was permissible. Thus, forms of public violence, such as brawling, that might have been regarded as acceptable were policed more rigorously. Duelling was outlawed. Laws were passed prohibiting the carrying of weapons in public places Forms of private or domestic violence, in particular gendered violence, and violence against children such as smacking, which had been regarded as acceptable in law have been regulated by new norms or changed forms of policing. And this is matched by governmental rhetoric which declares that every person should be entitled to live their life free of violence, and so on. The governing assumption seems to be that the body is inviolable.

The problem, of course, is that this promise is unlikely ever to be delivered upon, and this may create a damaging cycle. From the perspective of the individual it creates the expectation that we can live our lives without violence or the trauma it causes - indeed the violence may be more traumatic precisely because the expectation that our lives should be violence free is so strong. So when this expectation is defeated, it translates into a demand for recompense or that something be done by the state. From the perspective of the law, the inviolability of the body persists as a norm-giving assumption notwithstanding that it is continually violated. Indeed, its failures to meet these high expectations of interpersonal security may mean that it generates new laws - the demand from victims, or putative victims, is used to demand new, ever more draconian or intrusive, laws to secure us against future harm. And so we criminalize in ever more ingenious and intrusive ways. But it is perhaps necessary to step back and reflecting the logic of this process of criminalization.

On the illegality of sodomy in the US

I have just discovered this map:

[From: http://www.motherjones.com/mojo/2011/04/map-has-your-state-banned-sodomy]

It is hard to know what to say. I have to confess that I am shocked that laws against sodomy remain on the books in so many states in the US in spite of the Supreme Court ruling in Lawrence v Texas (2003) that these were unconstitutional. Of course, it can be argued that these laws have no force, but the very fact that they have not formally been repealed has symbolic force and sends a clear message about the public tolerance of homosexual activities. Even criminalization without the possibility of enforcement is not entirely innocent.

On the Verdict of Battle

I have just attended a fascinating seminar by James Whitman of Yale University based on his new book 'The Verdict of War'. The main argument of the book, briefly stated, is that up until the mid-nineteenth century war was understood as a means of settling property disputes, and battles were a form of wager, with the winner taking the spoils. The law of war, such as it was, was accordingly mainly concerned with determining the question of who had won, and trying to encourage broadly civilized conduct on the part of the combatants. And insofar as these were the ends, Whitman claims, it was broadly successful. A feature of pre-modern warfare was that battles were limited in time (no more than one day), and violence was confined to the battlefield and to uniformed participants - to the extent even that spectators would come from neighboring towns to watch. Of course, if you were a soldier it could be brutal, and it was accepted that the winners could loot the corpses on the field of battle and kill any survivors. This is then contrasted with modern warfare, where battles can go on for indeterminate periods, fatalities among non-combatants are routine, and there is no means for determining who has won other than trying to crush the enemy and secure unconditional surrender. This, controversially, is explained in terms of the collapse of monarchy and the rise of democracies and republics, where war is conducted in the name of the people - and the 'people' therefore become legitimate targets and will fight until they can fight no more.

There is a lot in this argument, and it is hard to do it justice in a short summary, but what particularly interests me is how the criminal law becomes part of this story.

According to Whitman, from the late nineteenth-century, humanitarian campaigners began to try and limit the horrors of war through the introduction of prohibitions on certain kinds of conduct - ensuring that survivors could not be killed or looted, introducing rules about the recognition of combatants and non-combatants and the limits of proper behavior in war. These kind of prohibitions now make up a substantial part of the modern law of war, as well as being linked to forms of international crime, such as crimes against humanity. While these are surely a great advance, Whitman questions the limits of the criminal law in this area. There are two aspects to this (and here the argument is my reconstruction of what I thought Whitman said, so may not be entirely accurate). First, it is not clear how useful or effective criminal law can be in a war situation, where you are dealing with scared or brutalized individuals. To be sure, these laws might provide for some limited redress afterwards, but we should be wary of claims that the law can guide conduct in war situations. Second, Whitman points out that this individualizes the law of war: it is no longer concerned with regulating conflicts between states, but with trying to determine just outcomes for individuals. The consequence of this is that the criminal law gets wrapped up in attempt to sanitize or humanize war. There are many reasons might we might want to do this - though better yet to avoid it altogether - but it is worth reflecting on whether the criminal law is an appropriate tool for for achieving these ends, or worse still, whether through this exercise we end up legitimating further violence.

On 'the Gallows'

I have posted before about the fascinating project 'Punishing Photography', and I would strongly recommend that you visit the site and see how the work is developing. Yesterday was the opening at Barlinnie Prison of an installation from the project. This is not open to the public, but you can see a short video of this impressive and haunting piece of work here, and see some of the photographs and read descriptions of how the work has developed on the blog.

The installation will be open to the public at the Briggait in the spring of next year - watch this space for details.

On joint enterprise

Those of us who work in the area of criminal law should never forget that the rules of criminal law have a profound impact on the lives of members of our society. This is brought home powerfully by this short film from campaigning group JENGbA (Joint Enterprise Not Guilty by Association).

The film (and the work of the group) highlights the large number of cases where individuals who appear to have been on the fringes of groups that have carried out killings have been charged with and convicted of murder, leading to heavy prison sentences. This is made possible because of the doctrine of joint enterprise.

This is a legal rule that basically holds that all those who are involved in a common enterprise can be held liable for the outcome of that enterprise provided that it is possible to demonstrate some sort of common purpose. Thus it is not necessary for the Crown to prove that the individual charged had the mens rea for the ultimate crime (say murder) provided that it can be proved that intended to share in the purpose or joint enterprise of the group. The existence of the rule is explained on the ground that where a group commits a crime it should not be possible for a member of that group to avoid liability. The rule is thus explicitly aimed at  groups or gangs where proof of membership or involvement may be enough to establish liability for crimes committed by the group.

But this is also where problems arise, because as JENGbA contend, there is evidence that the supposed social threat posed by gangs is being used to prosecute and convict individuals of serious crimes where, if they are guilty of anything at all, it is a much lesser involvement in the crime.

The question is what is to be done. This is an issue that has been looked at by the House of Commons Justice Committee, which has produced a report on the law and recommended both that the DPP produce guidelines for prosecutions in this area - and these have been promised - and that the law be placed on a sttautory footing. But while this has the potential to deal with future cases, by placing some sort of constraints on how the doctrine is used, it is not clear that this can deal with underlying problems with the doctrine itself.
Just as importantly, though, what will happen to those convicted under the use of this harsh and iniquitous doctrine?

On the collapse of criminal justice

There is a genre of writing about criminal law and the criminal justice system that presents the story of modern criminal justice as one of decline. There was a golden age at some point in the past - though precisely when this was depends on the thesis being advanced in the book - and the subsequent history is presented as a fall from grace. Ideals of clarity, simplicity and justice are departed from as the system becomes increasingly complex and bureaucractised. And the solution is always to go back to the future, a return to the model of the past as a way of moving forward.

An excellent example of this type of narrative is William Stuntz's The Collapse of American Criminal Justice (2011), a work which has been highly praised by reviewers. The diagnosis of the ills of the system is a largely familiar one. It is highly discriminatory against poor and black individuals and communities; punishments are increasingly harsh; and the rule of law has been increasingly undermined by official discretion in law enforcement - from the police deciding who to stop and search to the use of plea bargaining to replace jury trials, to legislative practices which have allowed the creation of broad offence definitions which ease the practice of enforcement. These three factors interact as discretion reinforces discrimination. These are then read through a historical narrative which tells the story of the departure of criminal justice from Golden (or rather Gilded) Age ideals. Stuntz is too smart to completely romanticise the past, but he still anchors the account in an appeal to simpler times.

These simpler times are seen in what has become known as the 'Gilded Age', roughly between 1880 and 1930. And this is read for two main factors. First, he claims that the system was more democractic, in the sense that there was greater local accountability, and second he argues that this system actually fostered greater commitment to the ideal of equal protection before the law. His account of this is complex and nuanced, but basically boils down to the idea that law enforcement officers lived in the communities where they enforced the law and juries comprised of local citizens had greater freedom to interpret how legal norms could be applied then this represented a check on state power, which was gradually undermined as the system was bureaucratised and made less accountable. More controversially, he argues that the due process reforms of the Warren Court in the 1960s were wrong because they undermined the pre-existing commitment to equal protection before the law.

There is a nostalgia for the past in this kind of thesis, that inevitably underplays certain features of the historical systems in favour of those which are seen to support the argument. However, rather than challenge the history with an alternative interpretation (which I am not sure that I am qualified to do), I am more interested in the structure of the argument. First of all, the nostalgia here, the appeal to simpler times, is deeply conservative. In spite of Stuntz's admission that he is primarily concerned with contemporary problems, this kind of move seems to me to express a desire not to engage with the present, to avoid the complexity of now by turning back the clock. Indeed the argument in the book works best when it drops the historical comparison and simply looks with a critical eye at developments in sentencing or policing. Nostalgia also inevitably underplays the complexity of the past, as we can appeal to an image that reinforces our existing prejudices. There is not a genuine historical interest here, because the argument is already known. And this points to the third move - redemption. We can be saved if we believe, but then the argument is itself predestined.

For some reason this genre seems particularly prevalent in the US - try googling collapse of american criminal justice and see how many examples come up. This may just be because dramatic titles sell books (collapse, decline, fall, death), but it probably also connected to something deeper. There is a lingering distrust of the state, evidenced in the faith in the original words or motives of the framers of the constitution, or the persistent desire to see their political system through the lens of de Tocqueville (a French tourist who showered it with praise in the 1820s). This might even be seen as a faltering commitment to modernity. Whatever it is, it is important in engaging with this to think not just of content, but also the form in which it is expressed.

On the (de-)criminalization of HIV transmission again

It occurs to me that the conclusion to the last post was rather rushed - a bit too oblique, if you like - and that I could have spelled out my concerns in more detail. I am also prompted to do this because I have been shown some further research on prosecutions for HIV transmission in Canada which underlines some of the points I was wanting to make in the post.

Criminalization or decriminalization in this area is always also about the distribution of responsibilities. Does the state take responsibilty for managing public health in this area, or does it pass the responsibility on to others - or does it share the responsibilities in an appropriate way? The use of the law in this area requires us to reflect on what it is that we seek to achieve through the use of the criminal law - the public health dimension, if you like. It is not only a matter of a harm being done to someone (the transmission of HIV), but also of whether the use of the criminal law is the best means of harm reduction. And in a situation where (at least) two people are involved, it is not always going to be easy to point the finger of blame at one of them. Who should take responsibilty for disclosure? Who is expected to take precautions (and who will be prosecuted for the failure to take precautions)? This also relates to our perception of who the victim is in a given situation, and who can be viewed as a perpetrator or which group of people represent a threat.

Answers to these kind of questions are given some content by research which has been carried out on who is prosecuted for the crime of HIV transmission in Canada and for what kind of sexual encounters. There is a lot of fascinating material in the report, but I want to pull out two key findings. These are first that in a high percentage of the prosecutions (40%) no actual HIV transmission had taken place - that is to say that the person was being prosecuted for an aggravated sexual offence where what was at issue was the risk of serous bodily harm. Second, the majority of those prosecuted were heterosexual men (around 70%) - which is to say those who were prosecuted on the basis of a heterosexual encounter - and in the period since 2004 the majority of these were black. In seeking to explain this last finding, the authors of the report make two observations. The first is that this might reflect differences in understandings of and respones to HIV risk between the gay and heterosexual communities. And second, they suggest that heterosexual women, and especially white heterosexual women, who are the complainants in many of these cases better fit police and prosecution conceptions of victims - and so the cases are more likely to be taken up.

So, if we go back to the discussion of the case, can we draw any further conclusion. It is arguable that the Court was trying to address the first point - decriminalising non-disclosure where there is no significant risk of transmission. But the real risk here is that this aim will be undermined by the lack of attention to the context in which sexual encounters take place and the failure to specify clearly where responsibilities lie. In fact it is arguable that the finding of the case - restoring the convictions against a black Sudanese immigrant where the female complainants testified about their fears - in fact reinforces the prejudices in this area.

The way forward must surely be shared responsibility for the disclosure and for the consequences of non-disclosure. Where no transmission takes place it is hard to see what is achieved through criminal prosecution - other than the reinforcement of prejudice. And even where there is transmission it is hard to see that the criminal law has a role to play, except in cases where this is deliberate and some overt deception or fraud has been used.

On the (de-)criminalization of HIV transmission

The recent judgment of the Supreme Court of Canada in the case of R v Mabior raises some interesting issues about the criminalization of HIV transmission. The case involved a man who was charged with nine charges of aggravated sexual assault under the Canadian Criminal Code for failure to disclose his HIV status to his sexual partners. In this case none of these sexual partners contracted HIV. There was also evidence either that a condom had been used, or that as the man was using retroviral drugs, his viral load was low and there was accordingly a low risk of transmission of the virus. The case accordingly concerned the questions of the degree of risk required to constitute the crime, and of the kind of risk might or might not be consented to and the sort of information that was necessary to make consent real.

He was initially convicted of aggravated assault, but on appeal the convictions were negated on the grounds that the low risk of transmission could mean that the offence had not been committed. The Crown appealed against this and the Supreme Court restored the convictions in four of the cases -where in spite of the low risk of transmission the complainants had testified that had they known of Mabior's HIV status they would not have had sex with him.

The case had been regarded as an important opportunity to reframe Canadian law on this issue. There was evidence to suggest that the level of prosecutions for this offence in Canada was high, and an unease about treating this as a serious life endangering offence in an era where improved drug treatment limited the impact of transmission. It is harder to argue that HIV is life endangering, at least in Canada and other western countries where the availability of retroviral drugs means that the illness can be managed. There was thus an argument that the offence had been drawn on overly broad terms, given its seriousness, and for limiting the role of the criminal law in this area.

The basic Canadian law in this area was established in the case of Cuerrier in 1998. In this case the Supreme Court ruled that failure to disclose that one has HIV could constitute fraud vitiating consent to sexual relations under s. 265(3)(c) of the Canadian Criminal Code and amount to aggravated sexual assault (s.273). (This, I should add, is already a stretch. Section 265 talks about applying force to another, and aggravated sexual assault is defined in terms of wounding, maiming, disfiguring or endangering the life of another - none of which are terms that easily fit in this area). So, in order to establish a conviction, the Crown must show a dishonest act which affected the ability of the complainant to consent (lying about the one's HIV status) and that this endangered life.

The decision in Mabior does not change the basic law in this area - an intentional failure to disclose HIV status can still amount to aggravated sexual assault - but it does try to clarify the circumstances under which discloure of HIV status might be necessary. For the sake of simplicity, the new test can be understood as comprising an objective and a subjective element. Objectively the Court states that in order for it to be necessary to disclose your HIV status there must be a 'significant risk' of transmission. Accordingly, where the risk of transmission is low it may not be necessary to inform prospective sexual partners of your HIV status (though the judgment is somewhat vague here as to whether it is also necessary to use a condom). In the subjective part of the test (which is not so clearly expressed) the Court seems to indicate that consent should be informed - that sexual partners should have the information necessary to enable them to make and informed decision as to consent.

But is always necessary to use one?

And here we see the problem. While the Court is to be applauded for attempting to restrict the scope of the offence in the objective part, because it is not possible (as they acknowledge) to define the exact level of risk at which disclosure is not required, a lot will then depend on the subjective part of the test. But it is not clear this will limit the offence. In the appeal the convictions were restored because the complainants testified that they would not have slept with him even given the negligible risk of transmission if they had known of his HIV status. The scope of the offence thus depends on the fears of potential victims, apparently even if these are unreasonable - and the laudable aspiration to protect informed consent can quickly collapse into uninformed prejudice. A proper test in this area must be based on something more objective.

On burglary

There have been eyebrows raised in response to the comments of Judge Michael Pert this week. While sentencing two men found guilty of burglary, he said that burglars who chose to burgle homes where the owner legally possessed a gun should accept the risk of being shot. In his exact words:

If you burgle a house in the country where the householder owns a legally held shotgun, that is the chance you take. You cannot come to court and ask for a lighter sentence because of it.

Joshua O'Gorman and Daniel Mansell,
who were shot in the course of burglary

Further comment then came this morning from Lord Chief Justice Judge, who responded to questions on the case by suggesting that burglary of a home was more than a crime against property, but was also a crime against the person:

It's not a matter of being sentimental. When you are at home you want to feel safe. You are entitled to feel safe and secure.

Sir Edward Coke:
"For a man's house is his castle..."

At one level this seems intuitively right - even without having to dress it up in the language of the Englishman's home being his castle, and so on. There might be two reasons for this. The first is present in LCJ Judge's statement, but might be spelled out more fully. This is that there is a difference between being in public and private spaces such as the home. When we venture out into public, we perhaps adopt a certain front or persona, we are ready for encounters or engagement with strangers. This might also be true of certain private spaces where we meet others. However, in our home, either on our own or with intimates, we generally do not feel the need to put on that front, unless perhaps we are inviting guests into our space - but even then there might be a different kind of negotiation, as we deal differently with friends or acquaintances and strangers. It is not just a matter of safety or security. One might feel safe in public, and a lot of feminist reserach has documented how for many women and children the home is not a place of safety. It is more that the uninvited entry of a stranger is a particular kind of transgression or threat. Thus at one level this might have nothing to do with property at all. It would be just as much of a threat to find an intruder in a hotel bedroom as in a home that you home. While a burglary of other kinds of buildings or dwellings houses would not be so threatening in the absence of people living there.

The second reason is also hinted at in the Lord Chief Justice's remarks, and is that a burglary might feel like a crime against the person. This might be because while we own or possess different kinds of property, we have a different kind of relation with them. I own some property which is in a sense 'disposable'. If certain kinds of property are taken they are easy to replace, and the lack of police interest, say, in tracking stolen bikes or even cars reflects this to some extent. But there are other kinds of property that might have less intrinsic value, but which have value to me because of their sentimental meaning or because I have worked on them or identify with the property in a certain way, and it would hurt me more to lose or have this stolen. And of course in our culture, our homes  represent a particular kind of investment. They are not just a structure in which to eat or sleep, but a particular place in which we ccan decorate and embellish as an expression of our identity - and to which we return at night to recover our sense of self. And it not then surprising that one often finds the victim of burglary reporting the sense of violation that they feel or the loss of a sense of security - the hurt goes far beyond the value of any property taken. So burglary, as with certain kinds of theft, might seem like a kind of invasion of the person.

But we should be careful where we go with this. Should a crime be treated as more serious becuase of the value of the property to the victim? Probably not, though it might at least be arguable that in some cases it might be worse to steal something (even of no value) that you know to be of value to the victim because, say, you want to hurt them.

But what about self defence?  The danger of going down this road of seeing threats to property as threats against the person is that we extend the scope of self defence, making it easier to see any intrusion or taking as a threat to self which would justify the use of (possbily fatal) force. It may be that, as LCJ Judge says, homeowners dealing with intruders should not necessarily have to hang around to find out the precise degree of threat offered by that intruder, But at the same time, many burglaries are routine and much of the property stolen is that which is 'disposable'  - not easily identifed and quickly convertible into cash (electronics etc). So we should be wary about defining our sense of burglary in terms of what might be an extreme or special case, and we should be especially wary about analogies which make it too easy to extend the scope of self defence.

On criminalization (again)

As regular readers will know, one of my main interests is criminalization: how is it that certain conduct or individuals become defined as criminal, and given that this involves the exercise of state power, what makes this exercise of power justified or legitimate?

Given that these questions have a certain currency and meaning in contemporary writings on the topic, it was interesting to go to the Oxford English Dictionary to see how the term is defined historically.

The dictionary gives two main meanings for the verb to criminalize. The first is

"to turn a person into a criminal, esp by making his or her activities criminal".

This draws a direct analogy with the French term 'criminaliser', meaning to accuse, and most of the early usages listed relate to the accusing of particular individuals with having committed crimes. It is not until the middle of the nineteenth century, that it takes on a more modern (and perhaps sociological) sense of defining individuals or groups as criminal or deviant in some way (Thus from the Law Magazine in 1854: "Young offenders had better be reformed than criminalized.")

The second meaning is that which is more familiar from philosophical writings on the topic and is

"to turn (an activity) into a criminal offence by making it illegal."

What is surprising to me about this second usage is that it appears to be relatively recent in origin. The first recorded usage in this sense listed dates only from 1832 and is (not surprisingly) from Jeremy Bentham, who was an enthusiastic inventor of neologisms. What is surprising, is that in using the term he is not referring to a legislative process, or at least not directly ("Asceticism has sought to brand and criminalize the desires to which nature has confided the perpetuity of the species"). It is not until the end of the century that it is listed as being used to refer to a legislative process more directly (from the Columbia Law Review in 1906: "it may confiscate the goods ... or criminalize the selling of them.")

What conclusions can be drawn from this? The first is that to understand criminalization in the second, legislative, sense does not seem to pre-date the existence of a modern parliament which is actively legislating to make certain activities or conduct criminal. To be sure conduct was criminalized prior to this, but the legislative sense implies some sort of choice about how or why this is done. Second, and more tentatively, it seems to me that it implies the prior existence of an idea of the criminal law as a distinct body of rules, and the bringing of a certain activity within the scope of what it means to be criminal. In this sense the activity is the object to which the criminal law is applied (as subject). Being criminal in the modern sense is thus not, and cannot be, a quality of the conduct or activity itself. And the meaning of any particular act of criminalization depends on our understanding of what the criminal law is and does.

On naked rambling

The latest step in the long saga of the 'naked rambler' was played out in Scotland last week, as Stephen Gough was sentenced to five months in prison - around his twentieth such sentence.

For those unfamiliar with the story the basic facts are these. Former marine, Stephen Gough, has become known as the 'naked rambler' for his desire to hike through Britain without wearing any clothes. He completed a Land's End to John O'Groats walk in 2003-4, but his attempt to repeat this, which began in 2006 has been dogged by controversy. He was arrested at Edinburgh Airport, after removing his clothes on the flight and refusing to put them on again, and has subsequently spent most of the past six years in prison, as each time he has been released he has attempted to walk without his clothes on and each time has been rearrested and charged with the crime of breach of the peace. He has been kept in near solitary confinement in prison, because of his refusal to wear clothes, and has also been charged with contempt of court on several occasions for his refusal to wear clothes in the courtroom.

And so last week Gough was once again charged with breach of the peace, after complaints from members of the public as he tried to walk near to a children's playground in Dunfermline, and on refusing to either wear clothes in court or to submit to a psychiatric assessment was sentenced once again to a period of five months in prison.

It seems clear that this does not reflect well on anyone. Whatever your views on the acceptability or even the advisability of naked rambling, it is surely not desirable to keep on sending to Gough to prison, and little is being accomplished by this protracted stand-off. This seems to have been recognised by the Scottish authorities as, according to reports last week, they apparently offered him either a lift out of Scotland or suggested that he might change his route to avoid populated areas in an attempt to break the cycle of release and re-arrest. On Gough's side, his seeming inflexibility has drawn criticism from some members of the groups who supported his campaign, and there have to be legitimate concerns about the impact of solitary confinement on his mental health. Either way, without something changing it seems likely that the whole situation will play out once again in a few months time once Gough is released from prison.

So what should be done here? One of the proposals of the Scottish police is admirably pragmatic - a lift out of Scotland, so that he can become someone else's problem. And indeed this might be an end to the problem. It is possible that Scottish society is more prudish or disapproving of public nudity than elsewhere in the UK. And there is no direct counterpart in English law to the Scottish crime of breach of the peace, which has been notorious for its flexibility and for its use by the courts as a means of maintaining community moral standards, and so it might be harder to charge him with a criminal offence merely for public nudity.

The arguments here tend to be reduced to questions of individual freedom versus (repressive) public morality, or questions of public versus private morality. This indeed is how Gough seems to want to frame the question himself, presenting himself on his website and in interviews as someone who seeks only to be himself, presenting an inner truth, and is fighting against oppressive social conventions. And there may be room for debate about whether members of the public were generally alarmed or distressed by the sight of a naked man, or whether this was an assertion by the police to obtain a conviction. But the matter is surely more complex than this, as our ideas about what is disgusting or offensive are not simply black and white - liberty versus repression - but depend on complex social expectations of each other and the appropriateness of certain conduct to certain places.

One of the most acute analyses of how conventions about public behaviour work was carried out by the American sociologist, Erving Goffman, in the 1960s. Goffman argued that public conduct is governed by conventions about how one interacts with strangers – not making eye contact, avoiding physical contact, not talking too loudly, and so on – and that conduct which breaches these conventions may disturb both particular individuals and the social order itself. He thus concluded that social relations, and in particular public interaction, depend on a minimal demand to make oneself ‘disattendable’ by not making claims on the fears or concerns of others. This, crucially, demands not only a respect for others but also on the setting of the interaction. That is to say that it does not make sense only to talk of private and public space, but it is also important to recognise that there are different kinds of public space. There are thus two factors at work here. First, it is necessary to recognise the negotiated nature of public interaction, in which as individuals we need to tailor our conduct to the expectations and fears of others - and one of the roles of the criminal law is to police the boundary of the acceptable and to intervene when conduct becomes threatening. This is not to say that such conventions cannot, or should not be challenged, but that simply asserting that something is natural is not likely to be an effective mode of challenge. There may be lots of things that are natural but that we would not tolerate or permit in public places. Second, this is situation and space dependent - what is acceptable in one setting or space may not be so in another. There are certain kinds of social situations where one might expect to see naked bodies, and others where such conduct would be challenging or a surprise. And likewise, naked rambling might be non-threatening (if surprising) on the remote moors or mountains of Scotland, but more threatening by a school playground or outside a church on a Sunday morning.

All of which can tell us something about why Gough is in the situation he is in, and perhaps also something about the naivete of his arguments. It is probably also the case that it tells us something about the criminal law. It may be justifiable for the law to intervene, but it is only really justified where there is some real threat to others in public places. A mere threat to the dignity of the law should not be enough.

On bigamy

The general rule in most common law jurisdictions is that acts committed outwith the territory are not cognisable by the courts of that country. Thus even in a case such as the apparent assassination of a British family holidaying in France last week, it would be highly unusual if the British authorities were to seek to prosecute the wrongdoers (should they be found) in England. Murder is a crime under French law and when committed in France it should be prosecuted there.

As with any rule of this kind there are exceptions (and the list is a growing one) and one of the most curious exceptions is the crime of bigamy. Under the Offences Against the Person Act 1861 s.57, a British citizen who undergoes a bigamous marriage ceremony anywhere in the world (i.e. knowing or suspecting that they are already married) can be prosecuted for the crime of bigamy in England. An example of the application of this rule is the prosecution in 1901 of the second Earl Russell, older brother of the philosopher Bertrand Russell - a case which is also an early example of the, now popular, Nevada wedding.

The trial of Earl Russell before the House of Lords

Russell had first married in 1890, but seems quickly to have become estranged from his first wife - though no divorce or legal separation was secured. In 1900 he obtained a divorce and entered into a second marriage in Reno, Nevada. His first wife then sued in England for divorce on the grounds of bigamous adultery. On returning to the UK he was charged with bigamy, and as a peer was prosecuted before the House of Lords. He sought to argue that on the basis of the "best legal advice obtainable in Nevada" that he had believed the divorce to be legal. However, the House of Lords, acting on the advice of Lord Halsbury, the Lord Chancellor, declined to recognise the legality of the divorce. He was convicted of bigamy and sentenced to three monhs imprisonment. (You can read a contemporary newspaper account of the trial here).

It is worth asking why it was that bigamy should have been treated as one of the few offences under English criminal law of extraterritorial application in the nineteenth century. (Why prosecute for bigamous marraiges committed abroad when you would not prosecute for murder or other serious crimes?) One possible answer to this might be that most murders committed abroad would crimes under the law where they took place, and the authorities there would be expected to prosecute. By contrast, bigamy would normally come to light for the British authorities when the couple were living in England, or as in this case where the first wife sued for divorce in the English courts, thereby making it a problem for the British authorities to deal with. And it is certainly the case that the Victorians were keen to uphold the respectability of marriage.

The Tichborne Claimant

But I think that there is potentially something else involved here as well, which was an anxiety over mobility and identity, which made the crime of bigamy appear to be a particular problem for the Victorians. The nineteenth century was a period in which it become possible to travel as never before. A young man might go abroad to seek his fortune, but this led to new worries as the apparently respectable young suitor might be someone who was seeking to escape a less than respectable past - and this could spell ruin for a respectable woman. And it could be hard to establish just who a person was in an era where there were no fixed or clear markers of identity - leading to such celebrated cases as the 'Tichborne Claimant', where an Australian butcher was seemingly able to pass himself off as the missing heir to the Tichborne fortune. Thus in the crime of bigamy anxieties over identity, mobility and the sttaus of marriage came together, adn the extraterritorial application of the law can be seen as an attempt to control this in a rapidly changing world.

Of course, the extraterritorial application of the crime is of little importance these days, as the prosecution (and presumably incidence) of the crime of bigamy has declined with the more ready availiability of divorce and the decline of marraige more generally. There are still prosecutions, but these now more often concern attempts to breach immigration law, pointing to a change in the focus of the crime which will have to be the subject of a separate post.

On preventing the lawful burial of a body

Criminal offences are like buses. Sometimes they are not used at all, and then several come along at once. And this has been the case this summer with use of the highly unusual charge of 'preventing the lawful and decent burial of a body' in two very high profile cases.

Hans Kristian Rausing

The first is the case of Hans Kristian Rausing, heir to the Tetrapak fortune, who pleaded guilty to the offence and admitted to having kept the body of his dead wife for two months in his Chelsea mansion. Then later in the summer, Jackie Powell, the mental health advocate of the so-called 'Moors murderer' Ian Brady was arrested on suspicion of having committed the same offence. However, the facts in the two cases are quite different, and it is worth looking at these because it suggests that the justification for the offence is confused at best.

In the first case, Rausing admitted to drug use and mental health problems stretching back over a period of some years. On his account, his failure to report the death of his wife (who suffered from similar problems) was due to an unwillingness to face up to the reality that his wife had died. The use of the offence seems to have been a way of ensuring thta he undertook some sort of treatment - he was given a suspended prison sentence and ordered to undertake a drug rehabilitation programme. This may already be troubling, given the existence of civil procedures which might have accomplished the same end, but the use of the the charge against Jackie Powell, is even more worrying.

Police searching Saddleworth Moor 

The facts here are that Brady and his accomplice Myra Hindley were convicted of the murder of five young children in the 1960s. However, they never revealed where the body of one of the victims was buried, and in spiite of regular police searches of the moorland where it is believed to be hidden, it has never been discovered. In this case, then, Brady allegedly revealed the location of the body to Powell, soemthing that was disclosed by Powell during the filing of a TV documentary, though she is claiming privilege and refuses to disclose the location to the police. While this is arguably preventing the lawful burial of the body, what appears to be happening here then is that the threat of the charge is being used to try and force Powell to disclose the location.

Grave robbers at work

The offence itself is an unusual one and, as is pointed out here, is rarely used. It is a common law offence which was apparently revived in the 1970s after years of desuetude, that seems to have been used where those under a duty to provide a burial, such as gaolers or workhouse masters evaded that duty. Its recent usage appears to be in cases where individuals have sought to conceal the body of someone who has died as a result of some sort of accident or misadventure. It is not immediately obvious why this should be a criminal offence. One justification might be the risk that a decomposing corpse might pose to public health - and this seems to underpin some statutory offences in this area, such as those relating to cremation, or simply the common law offence of leaving a corpse unburied. It seems that something hangs on the concealment - a failure to bring the death to the proper notice of the authorities, but absent concerns over health, this might be dealt with as an administrative offence under s.36 of the Births and Deaths Registration Act 1953. In certain circumstances this could also be charged as obstruction of coroners, where the concealment is to prevent the discovery of a body or to prevent a coroner from carrying out an inquest. This can be justified on the grounds that this would prevent other alleged crimes from coming to light, but this does not appear to be the situation in either of the cases here.

However, as pointed out here, the inclusion in the crime definition of 'lawful and decent' burial, also points to more fundamental beliefs about bodies and their disposal - and, historically at least, the need to give a body a proper Christian burial and to prevent grave robbers passing bodies to hospitals. What is important then is not the fact of burial, but that it should be both lawful and decent, or perhaps more broadly that the corpse should be treated with proper respect. If this is accepted, then it appears that there might be room for an offence of this kind which can be justified on grounds distinct from public health, breach of an adminstrative duty or the concealment of another crime. However, it is not clear either that this should be a serious offence, nor that its use would be appropriate in either of the two cases discussed above.

On holiday

Many thanks to everyone who has visited this blog over the last few months. It has has been fun to write, and pleasing to know that it is of interest to at least a few people out there. I am taking a break now for a couple of months - part vacation but also to complete some other writing projects. I will be back on a regular basis at the end of August, and hope you will rejoin me then.

On the Murders Abroad Act 1817

Here is the text of this Act passed by the British Parliament in 1817:

“All murders and manslaughters committed or that shall be committed within any other islands, countries or places not within his Majesty’s dominions, nor subject to any European state or power, nor within the territory of the United States of America, by the master or crew of any British ship or vessel … or by any person sailing therein or belonging thereto, or that shall have sailed in or belonged to and have quitted any British ship or vessel to live in any of the said islands countries or places .. may be tried, adjudged and punished … in the same manner as if such offence or offences had been committed on the high seas."

What is striking about this is that it seeks to extend the jurisdiction of the English law of homicide to what the celebrated English criminal lawyer, Glanville Wiliams called “uncivilised territory” i.e. that which is not controlled by Britain, other European powers or the United States. This was passed as a particular response to outrages committed by sailors in the Pacific Islands and certain areas of Latin America. It both demonstrates the hubris of imperial power - our law extends even to those place outwith the dominion of the Crown - and creates an interesting linkage between jurisdiction and civilisation.

 

[There is an archive containing this and simliar legislation relating to the South Pacific at http://www.vanuatu.usp.ac.fj/library/online/texts/Pacific_archive/homepage.htm ]

On the strange case of the Felicidade (1845)

On 26th February 1845 the British ship HMS Wasp was patrolling off the coast of Africa, looking for ships that might be involved in the slave trade. A Brazilian ship called the Felicidade was spotted, and the Wasp gave chase. The ship was captured, but proved to have no slaves on board, though it was fitted out for the slave trade and was clearly on its way to Africa for this purpose. A party of British sailors boarded the ship under the command of a Lieutenant Stupart.

While on board the Felicidade, a second ship named the Echo was spotted, and both the Wasp and the Felicidade gave chase - though the Wasp was quickly left behind. After a pursuit lasting 3 days, the Echo surrendered. The captain of the Echo and its crew of twenty one were taken on board the Felicidade, which was put under the command of a sailor named Midshipman Palmer with nine sailors, while Lieutenant Stupart and a boarding party of seven manned the Echo. That night, however, as Palmer apparently 'permitted himself the luxury of a bath', the captured Brazilian crew rose up, killed the ten British sailors and threw their bodies overboard, before fleeing once more.

The Echo was unable to follow, but three days later the Felicidade was again stopped by another British ship. The crew of this ship knew nothing about the previous events but became suspicious about the unexplained bloodstains on the deck and questioned the the captured men. Eventually two crew members confessed and the Brazilian crew were once more taken into custody. This time they were taken to England where they were tried at Exeter Assizes at the end of July 1845 for the murder of the ten British seamen.

The story so far is fascinating - a forgotten episode in the suppression of the Atlantic slave trade. However, it is the trial and its aftermath which is really extraordinary from a legal point of view. Initially the men were convicted of murder. (Interestingly they were tried in Exeter using of a jury de linguae mediatate - a jury half of whom were non-native English speakers). However, the case was deemed to raise complex legal issues on which further discussion was required, and so these were reserved to the common law judges in London for further argument (there being no proper appeal process at this time). The main point at issue can be briefly stated. It was claimed that the English courts lacked the jurisdiction to try the men for murder: the incident had taken place on a Brazilian ship on the high seas and the identity of victims was insufficient to confer jurisdiction on the English courts.

It was accepted law that English courts had jurisdiction over offences committed on British ships at sea, irrespective of the nationality of the offender. However, it also followed from this that they had no jurisdiction over offences committed on foreign vessels. The case accordingly turned on the question of the nationality of the Felicidade at the time of the incident, for if it were accepted that it was a foreign ship then the crew would have a right to resist using force, for the British sailors would then be acting without lawful authority and could legally be viewed as pirates. For the Crown it was contended that the sailors had acted lawfully under treaties in force between Britain and Brazil for the suppression of the slave trade. Under these treaties it was argued that ships could lawfully be detained either where there were slaves on board or where there was equipment supporting slavery. Accordingly it was argued that the Felicidade in effect became British at the moment of its capture and was operating under British authority. The lawyers for the defence argued that while the original apprehension of the Echo might have been legal under the treaty, there was no jurisdiction in respect of a different crime committed on board a Brazilian ship which they argued had been illegally seized by the Wasp. The majority of the court agreed with this view and the crew of the Echo were set at liberty and returned to Brazil at the expense of the British government.

This is in many ways a surprising decision. It might have been expected that the English Courts would jump to the protection of British sailors who, whatever their precise legal status, were acting in good faith and seeking to suppress the illegal Brazilian slave trade- a project that was actively supported by the government of the time. It might also have been expected that, in the era of Lord Palmerston's 'gunboat diplomacy', the courts would protect British sailors from being murdered. What emerges instead is that the courts upheld (albeit only by a majority) a highly technical reading of the jurisdiction of the courts, which seemed to cut against the political interests of the British state.

The decision, unsurprisingly, was not popular. There are reports of outrage being expressed in Parliament and of the Times thundering its discontent. Commanders of ships on the African coast led boarding parties shoulting 'Remember the Felicidade', and rather than being taken into custody, the captured Brazilian crews were set adrift in boats near the African shore, leading to their almost certain death either at sea or at the hands of Africans if they regained the shore.

On legal treatises

In spite of their undoubted importance legal treatises have been somewhat neglected by scholars and historians. The dominant understanding of the importance of the treatise was established in a article published by celebrated legal historian AWB Simpson in 1981. In this he argued that treatises should be understood as a distinct form of legal literature that emerged over the course of the eighteenth century, the distinctive qualities of which were that it sought to identify the principles that should structure the law in a particular area and thereby reveal (or impose) a kind of doctrinal unity on the area of study. For Simpson this was traced in particular through the emergence of areas such as contract or property as distinct principled fields within the common law as a whole.

This view has now been challenged in a collection of essays published this month. While paying tribute to Simpson's groundbreaking work, the essays make two main points. First, the contributors show that the treatise could take many forms, and that not all treatises could fit easily into the template described by Simpson. There is more emphasis in these essays on the kinds of functions that treatises were expected to perform and who they were written by: were they aimed at students or practitioners? Were the authors judges or magistrates, or just hard up barristers trying to make a bit of money on the side? The answers to these kind of questions are often linked to the kind of literature that was produced, and suggests that many authors did not have the systematising ambitions identified by Simpson. Second, by looking at treatises in a wider geogrraphical context than just England - the essays cover the US, Canada and Scotland, as well as England -  it shows that they played a range of different functions often depending on how developed legal institutions were in that particular place.

It would be wrong of me not to declare an interest in this - I wrote one of the essays in the book (on nineteenth century criminal law books) - but even so, this is still a tremendous collection and definitely worth a look.

On criminal law's imaginary

A conversation last week got me thinking about this question: what would criminal law's imaginary or ideal world look like?

The ideal city

What do I mean by an imaginary here? I know that the term has a technical meanings in psychoanalytic theory, but want to use it here in a simple sense as a way of just raising the question. This would the question of the criminal law's fantasy image of itself. What does it understand itself to be? In what sort of terms does the law see or understand itself?

Why does this matter? Well one sense in which it might matter is that criminal law theories are often concerned with questions of the normative - how the law ought to be (as opposed to how it is) - and use this as a standard against which to criticise existing law. However, for such criticisms to have purchase they would surely need to engage with how the criminal law sees or understands itself. If, then, the criminal law's self image is based on practicality or efficiency, then the criticism might be understood as misplaced. Another sense in which it might be important would be in terms of understanding its broad self-image or the sense of place or time in which it sees itself operating.

While it common to talk about the imaginary in relation to individuals, it is les common to think about it in relation to a social institution such as law. Can it have an imaginary? And if so where would we find it? And of course it would change over time - there is no single imaginary.

One possibility might be academic writings that order and reflect on the criminal law, or alternatively the judgments of of appellate courts. What do they understand the law to be doing. In what does it consist? What holds it together?



 If this is too complex, another possibility is that we could look at the works of individual authors who hvae developed a theory of the criminal law, and ask the question of that theory. One example that comes to mind here is this quote from Jeremy Bentham, which comes at the end of "Of laws in general", in which he has been developing his theory of the criminal code:

On a map of the law executed upon such a plan there are no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for: the vast and hitherto shapeless expanse of jurisprudence is collected and condensed into a compact sphere which the eye at a moment's warning can traverse in all imaginable directions

What is striking to me about this quotation is that it lays bare in a single sentence the whole machinery of the law as conceives of it: everything is known in law; everything is mapped and ordered; But more than anything else it captures a dynamic of speed and efficiency. The eye of the lawyer moves through the code as the panoptic eye moves through the social body, alert and responsive. It is bleak and somewhat intimidating picture, and revealing of the imaginary of this project of codification.

For some reason this phrase always makes me think of Piero della Francesca's famous image, the ideal city. It is a beautiful painting of symmetrical renaissance palazzi. It demonstrates the techniques of perspective. But in reverse from the normal technique of opening out from a central object in the foreground to a broader landscape in the background, this painting pulls us in to the circular palace in the middle.


The Ideal City?

And look more closely. The city is organised on a grid: the lines of the square go out in every direction; the buildings are in squares, replicating the city plan; and the only curve is in the central circular building, perhaps anticipating the panoptic eye of Bentham's code. (Even the sky follows the same linear pattern). Above all this is the ideal city without people - whose presence is only hinted at by a couple of plants in windows. It is the city imagined as pure order, like Bentham's code, and its beauty is ultimately terrifying.