This is a blog about the history, theory and practice of the criminal law. I shall write about books, cases, trials, novels that catch my interest, and even occasionally about current events. My aim is not comment on current caselaw or issues in criminal justice, but to rather to develop a more oblique critique of the law.
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.
Tuesday, 8 May 2012
On the fall and (possible) rise of treason
One of the most notable changes in the criminal law over the past few centuries is the decline in importance of the crime of treason. In the early modern period treason was one of the organising ideas of the criminal law. Offences against the sovereign were not only the most serious form of crime, but other serious wrongs were also conceived of as forms of treason. Thus, murder of a father or a master was understood as 'petit-treason' - not only the wrong of killing but a killing made worse by breach of the relation of trust between killer and victim. If not exactly regular occurrences, treason trials were a feature of the political and religious conflicts of the seventeenth and eighteenth centuries.
The long decline of treason began in the nineteenth century. While political conflict did not decline, the authorities began to find other ways of dealing with it, more often than not avoiding the kind of direct confrontation that a treason trial entailed. There were famous instances of treason prosecutions in Britain in the twentieth century - notably of diplomat and Irish rebel Sir Roger Casement in 1916 and William Joyce (Lord Haw Haw) in 1945 - but these stand out because of their rarity rather than as indications of any more general usage of the criminal law. Possibly the most famous treason trial of the twentieth century was that of Nelson Mandela in 1956 - but that in itself tells us something about the use of the crime, as it was a defensive and authoritarian regime that sought to suppress political dissent
It is not hard to explain this decline. Treason trials were state trials, moments of political importance where the criminal law was used against opponents (or alleged opponents) of the state. The use of the criminal law in this way politicised the law, and carried potential to deligitimise the law as its use for political ends challenged the appearance of neutrality. The definition of the crime also required proof of motive - that certain acts were directed against the state or person of the sovereign. This gave the accused a kind of platform either to challenge the state directly, by arguing that it was illegitimate, or more indirectly, by arguing that their motives were to protect the state against itself. And so we find that political opponents of the state were prosecuted in other ways, such as for breaches of public order. The use of minor offences that were easily proven and which gave little opportunity to use the courtroom to mount political challenges was more effective in defusing political tension - a development that also reflected the professionalisation of policing. And as political democracies became more established there was also, it has to be said, a greater tolerance of political dissent and protest. This is not to say that direct forms of political resistance are tolerated in the modern state, but that in the criminal law they are targetted by novel crimes such as terrorism offences, which are, at least in name, more targeted at particular forms of conduct.
In this context it is somewhat surprising to find some US academics pressing for a renewed recognition of the importance of treason. The argument, stated briefly, is that treason as a crime of disloyalty, should be understood as a transgression of political boundaries. It is thus argued that citizens owe duties to the state and that treason breaches these duties. The crime of treason is thus connected to the sense of loyalty that as citizens we ought to owe to the political community of which we are a part. Once again this would make treason central to the criminal law, for almost every crime could then be seen as a crime against the community - breaking the bond of trust or loyalty that we owe to others.
Sir Roger Casement,
tried for treason in 1916
Now this is all very well as way of linking criminal law to a sense of political obligation, but this kind of approach seems dangerous. The first question that we might ask is a broad one: can it really be said that we owe a strong sense of loyalty to the state in this sense in the modern world? I am sceptical about this for it is surely the case that in modern, multicultural democracies this kind of strong sense of loyalty is surely absent. Most modern states have large populations of non-nationals, of recent immigrants, of different ethnic or religious communities. It might be realistic to require that these groups or individual members of these groups acknowledge an obligation to obey the law of the state in which they live, but to require something stronger, the kind of commitment that 'loyalty' suggests, is surely too much. This would also raise questions about criteria for membership. When can it be said that a person belongs to a political community in the sense that they owe a duty of loyalty? And what would happen with the kind of divided or multiple senses of belonging that are common in the modern world?
It also seems to me that this approach would cause problems in criminal law terms. The crime of treason is notoriously inchoate. Historically it required imagining the death of the sovereign, but even modern definitions tend to focus on some sense of conspiracy or plotting against the state - that is to say it is criminalises a person for their political designs rather than their conduct. Surely it is better to prosecute a person for their conduct if it is an existing crime, than to invent new crimes, by which I mean that if a person is planning some sort of political violence against the state or its symbols they can already be prosecuted for this, without the need to reimagine the crime of treason.
The decline of treason is a long and interesting story, and there is much interesting research that could be done into this. Its possible rise is another story altogether, and it is to be hoped that it is short-lived.