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, 1 April 2014

On proportionality, harm and order

Patrick Colquhoun (1745-1820) is famous as a penal reformer and one of the founders of the modern police. He began his career as a merchant in Glasgow before moving to London in 1785, becoming a magistrate in the East End of the city - an area that covered the docks. It was his work here that prompted him to write his most famous work, A Treatise of the Police of the Metropolis, which was first published in 1796. In this book he argued for a new system of police and criminal law to address the problem of theft from the docks and the welfare of the community more generally. His proposals were adopted and a new river police force established in 1800, that was to become one of the models for the creation of the metropolitan police in 1829.

The following is quote from his book:
“It is the triumph of liberty when the criminal laws proportion punishment to the particular nature of the offence … In offences which are considered by the legislature as merely personal and not of the class of public wrongs, the disproportion is extremely shocking. If, for instance, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by a fine and imprisonment, but if the delinquent steals from his neighbour secretly more than the value of twelve pence, the law dooms him to death” (Colquhoun, Treatise on the Police of the Metropolis 6th  edn. 1800 pp.30 & 35)
This is interesting as comment on eighteenth century criminal law. Most obviously it is a critique of disproportion in punishment and an argument for reform. The eighteenth century law is criticised for brutality (that a thief is punished by capital punishment) and for disproportion (that an aggravated assault is scarcely punished at all, and certainly not capitally). This fits with the well known picture of eighteenth century criminal law as  brutal and arbitrary.

But look more closely and there is something even more interesting going on. First, he is pointing out that interpersonal violence is not regarded as a public wrong, but something that can be settled between the parties with, at most, some lesser form of punishment. This seems alien to our modern understanding where violence is always a matter of public concern, in some way the archetypal public wrong. It is perhaps hard for us to imagine a criminal law where violence is not centrally regarded as a wrong – but that is how eighteenth century lawyers thought.

Second, it is implicit in any claim about disproportion that there is some other truer measure of proportion or the proper relation between things. Here, for Colquhoun, the proper measure is public wrong in the sense of harm to the community. The idea of harm in this sense can become for Colquhoun a measure of commensurability between different types of wrongful conduct, allowing them to be ranked in terms of seriousness. 

Finally, this is linked into the bigger claim, taken from Montesquieu, that there is a link between proportion and liberty. The proper order of the criminal law will secure a broader order. The reform of the criminal law is thus linked to the refoundation of society.