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.

Friday, 7 December 2012

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.

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