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, 16 May 2012

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.


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