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.

Monday, 2 April 2012

On seriouness

One of the axioms of modern thought about criminalisation is that criminal law should be reserved for the most serious matters. The thought is that there is a continuum of responses to forms of wrongdoing - from informal responses to civil law, to certain kinds of regulatory response, to the use of criminal law as a last resort. While this is rarely examined it is assumed, I think, that this legal response tracks social attitudes or beliefs, that criminal law should be used sparingly. It is, moreover, assumed to be the case that criminal law, as the expression of state power should be used as sparingly as possbile in order maximise individual freedom.

An anglo-saxon penny
But is it necessarily the case that the role of criminal law must be conceived in this way? A fascinating piece of research on the relations between theft and homicide in Anglo-Saxon England raises questions about this. The argument of this piece of research, published by TB Lambert in the most recent issue of Past and Present, is that there was a significant disparity in the way that the royal courts treated theft and homicide. He suggests that theft was regarded primarily as a criminal offence, but killing was understood primarily as offence against the victim and their fmaily rather than the king. Theft (and other property offences) accordingly were tried in the royal courts and attracted severe punishment, while homicide could be resolved by the payment of appropriate compensation to the family of the victim.

This distinction came about, Lambert suggests, because killing was seen as an open honourable offence, while theft was a dishonourable secret one. Thus a killer would be expected to admit the offence openly as a matter of honour and to make redress possible. Theft, by contrast, was a secret offence, the perpetrator was unknown and the victim could not know how to get redress. Lambert is at pains to stress that both were regarded as serious wrongs - but that seriousness did not automatically mean that criminal law was the appropriate remedy.

An Anglo-Saxon helmet, from Sutton Hoo
 What might this mean for thinking about criminalisation? Well, first it is interesting to note the reversal in the understanding of the relative seriousness of theft and homicide. Theft was one of the most serious criminal offences at the time and homicide was not, whereas in the modern world we tend to believe the opposite of this. This at least should give pause for thought to those who suggest that there is a core understanding of wrongs and their relative seriousness which is common to all (or most) societies which makes the core of the criminal law. It follows from this that we must pay attention to how the category of crime is constituted. Lambert suggests that this starts to occur from the late twelfth century, with the grouping together of theft and homicide under a single royal jurisdiction - a development that he suggest was connected to the ending of the practice of feuding. Most important for the point here it suggests, as Lambert points out, that seriousness and wrongdoing do not automatically track each other. Both theft and homicide could be thought of as serious wrongs at the time, but only one of these was thought to be a matter of primarily public concern. That this was so was connected to forms of social organisation, legal jurisdiction and undertandings of violence and honour.

This is obviously of enormous historical interest, and if true would require a substantial rethinking of the history of crime and law. But should any of this trouble the legal theorist, who might well respond that historical development after the twelfth century merely underlines the normative claim that criminal law should be reserved for the most serious offences; that the modern position is best, and correct as well. I think that there are two possible responses to this. The first, and weaker, point would be that this at the very least reveals the contingency of some of the assumptions underlying our normative thought. We should beware making claims about the universality of some of our beliefs or intuitions, because such claims can be easily undermined. The second point though would raise deeper issues of method to point out that the ordering of seriouness is not primarily a moral issue but a matter of legal ordering. The moral weighting we might give to certain conduct must be understood through the lens of legal jurisdiction. From this perspective we may not want to argue that the modern position is wrong, but that it must be understood primarily as a legal and political question of state power rather than as a question of moral theory.

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