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.

Sunday, 13 May 2012

On criminal law and religion

There is a massive gap in our understanding of the relation between religious beliefs and institutions and the criminal law. This is all the more surprising given that the languages of religion and law draw on the same sets of concepts. We routinely talk in criminal law about guilt, wrongdoing, judgement, moral character and conscience and so on, yet these terms are treated as though they have no deeper history in our religious and cultural institutions and beliefs. This seems very strange: if we want to understand the nature of guilt or judgment then why not engage with theologians, who have been discussing such matters for hundreds of years? This failure might seem even more surprising in Scotland where one of the distinctive features of the criminal law is its explicit use of religious concepts, such as evil and wickedness, as concepts of mens rea.

Kirk or law?
In other respects this neglect is more comprehensible. The development of the modern law, in Western European countries at least, is routinely understood in terms of a process of secularisation, in which the law frees itself from superstition or enchantment, escaping direct religious influence. Institutionally this meant a separation between church and state. This was reflected in the conduct of trials, the training of lawyers, the rituals of judgment and punishment. In content, this is seen in the declining importance of crimes against religion (such as blasphemy or witchcraft) and the gradually declining importance of crimes directly derived from religious precepts, such as adultery. Indeed, the absence of crimes such as blasphemy or adultery comes to be seen as a marker of modernity or civilisation with respect to other systems (such as Pakistan or Iran) where such crimes continue to exist. Notwithstanding this it is clear that our systems still struggle to engage with religion - such as crimes committed in the name of religion (such as honour killings) or the protection of religion as an aspect of identity (hate crimes) - although interestingly these now tend to be treated as matters of cultural difference, reflecting the secularisation of perspective.

It is, though, less easy to track the influence of beliefs about guilt and character in the modern law. There is clear historical evidence of their importance in relation to punishment, in the penitentiary and the secularisation of rituals of confession or asceticism, as has been demonstrated by historians such as Michel Foucault and Michael Ignatieff amongst others. But what about in the substantive criminal law itself? How did religious beliefs shape or influence the grammar and institutions of the modern law? Was there a difference between criminal law in protestant and catholic countries? These are the kind of issues that have not been systematically addressed by historians or theorists.

John Calvin

Some answers to these questions can be found in a fascinating article in a recent Edinburgh Law Review by Chloe Kennedy. In this paper she looks specifically at the influence of Calvinism on Scots criminal law in the seventeenth and eighteenth centuries, and she finds clear traces of Calvinist doctrine in contemporary legal writings. This, perhaps, perhaps should not be surprising. The influence of the Kirk in post-reformation Scotland is well known at both a national and local level, and so we should expect that lawyers would be trained in theology and that this would be reflected in their writings and judgments. However, in the most interesting sections of the paper she looks at the relation between Calvinist ideas of guilt and will to show how the idea of 'dole' - as a kind of general mens rea or sense of evil will which is one of the central concepts in Scots criminal law - has a clear affinity with Calvinist beliefs.

This is an important contribution to the understanding of Scots law, but should also stand as a reminder to all criminal lawyers that this relation between criminal law and religion should not be neglected.


1 comment:

  1. Family law, that decides on matters of social conduct and occupies the space demarcated by religion and custom largely makes up the 'non-formal' aspect of the dual legal system in the country.

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