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.

Tuesday, 17 September 2013

On Criminal Law and the Modernist Novel

I am very pleased to be able to sing the praises of a new book, with just this title, that has just been published by Cambridge University Press. The book is by Rex Ferguson and explores the relationship between literary and legal modernism, looking in particular at the work of EM Forster, Marcel Proust and Ford Madox Ford. I also have to declare an interest here: I was lucky enough to be one of the supervisors of the original PhD which the book is based on, and feel a tremendous sense of vicarious pride at seeing the work in print.

The central claim is simple enough. The modernist novel was based, amongst other things, on a sense of the unreliability of memory or the inability to reconstruct reality. The omniscient external narrator of the Victorian realist novel was replaced by unreliable narrator of the modernist novel. Experience, as a source of access to reality was undermined or questioned. And this, it is argued, was not simply something internal to the novel, but was a response to a broader social and cultural crisis at the turn of the twentieth century.

This much seems clear in relation to the novel (though to state it so briefly is to fail to do justice to Ferguson's argument), but what does it have to do with law? The life of the law, as Oliver Wendell Holmes famously asserted, is experience, and criminal trials, in particular, claim the ability to reconstruct events as they really happened on the basis (amongst other things) of the experience of witnesses. Did criminal law and theories of evidence and the trial remain completely untouched by the advent of modernism and this crisis of experience?

Ferguson's major contribution in his book is to show that they did not; indeed it is hard to imagine how they could have done, even if the law's self image is one of continuing (not to say overweening) self-confidence in its traditional procedures for establishing proof. In his careful analysis of forensic developments of the early twentieth century - fingerprints, graphology - Ferguson shows how the law sought new forms of reliable evidence to supplement or supplant the unreliable testimony of witnesses. And most importantly he suggests that the establishment of Courts of Appeal able to review and overturn the verdicts of trial courts (in England and Wales in 1906 and in Scotland in 1926) was a response to the same crisis that gave rise to the modernist novel - the recognition of the potential fallibility of the criminal trial and its truth finding procedures.

And lest this sound unduly esoteric to some readers, we should note that this is an argument with huge contemporary relevance. As I have noted in earlier posts, Lord Carloway and the Scottish Government are currently proposing the abolition of the requirement of corroboration. Their argument (in somewhat condensed form) is that far from enabling the establishment of truth, the requirement of corroboration stands
in the way of truth, preventing prosecutions where we (the Crown, the police) know that someone is really guilty. This is a claim that is based on certain unexplored assumptions about truth and how we access it - notably that certain bodies possess a kind of professional experience which give them a superior access to truth, and that the criminal trial should mirror this in some way. (And that legal procedures or safeguards block access to truth rather than being central to the process of establishing it).

Irrespective of the rights or wrongs of Carloway's view, what is important here is that we should be examining the assumptions which underlie his position - precisely the sort of full investigation and debate which the Scottish Government seems to want to avoid. The value of  Ferguson's book is that it addresses precisely these kind of underlying questions about trust in experience, and the place for legal safeguards as a response to uncertainty.

No comments:

Post a Comment