Criminal Law Going Critical

Abstract

This paper forms the second chapter in the book Definition in the Criminal Law to be published by Hart Publishing in September 2004. It builds on the richer notion of legal doctrine identified in chapter 1 and the different perspectives of orthodox and heterodox scholars introduced in that chapter. Its own subject matter is to take seriously the heterodox or critical perspective on the criminal law, as a preliminary to studying in subsequent chapters the workings of the process of definition within the criminal law. The first section examines as influences on the critical perspective, CLS, Critical Theory and Postmodernism. The importance of emancipatory reflective thinking for Critical Theory and deconstruction as an instrument of Postmodernism are considered with particular reference to the work of Benhabib and Derrida. In both cases the need for a capacity to employ the practice alongside its use as a merely intellectual technique is recognised, in order to avoid the phenomenon of exit reflexivity (the endless revision of critical reflection that makes any resolution of practical problems impossible). The second section focuses on the specific relationship between the critical approach and the criminal law by investigating their underlying premises. Two extreme forms of this relationship are rejected - the extreme critical perspective that all criminal conduct is caused by oppressive forms of social life, and the eliminative ideal which assumes that all social wrongs can be attributed to individual criminal conduct - in favour of a broader critical approach which recognises human failing as a common occurrence within the two premises. This approach offers the opportunities to use the criminal law as a critical resource as well as subjecting it to critical scrutiny, and avoids the inflexible dogmatism of the two extreme approaches which have been rejected. A developing theme in these first two sections is the centrality of a sense of community or a vision of society to an effective critical perspective. This is explored in greater detail in the third section, with a number of implications being drawn. First, the importance of a social vision unites rather than divides heterodox and orthodox scholars. Secondly, the well documented disappointments with the impact of CLS on the criminal law can, at least partially, be attributed to a failure to give sufficient attention to the need for a positive vision of society to complement the negative deployment of critical techniques. This point is reinforced by contrasting the greater success of feminist critical approaches which have harnessed a specific vision of society. Thirdly, in picking up the earlier examination of critical techniques, the need for a prior commitment to those deeply held values which inform one's vision of society is observed in the discussion by Brown and Halley of the energising role of critique for left political projects. The fourth section explores more deeply the differences between orthodox and heterodox viewpoints over values, legitimacy, and the technical capability of the criminal law. The earlier approach to critical techniques is tested further by consideration of two potential problems. The first is Kennedy's attempt to retain hardline scepticism with a radical activism through replacing deeply held values with political sentiment. The switch is not on closer examination sufficient to conceal a prior commitment to a preferred vision of society. The second is the use of critical techniques to attack the well-formed notion of law. This turns out to be an artificial target which distracts attention from a proper consideration of the actual practice of the criminal law. The paper concludes by suggesting that disagreements over the sort of society we want to live in, and the role of the criminal law in supporting a particular vision of society, cannot be understood or debated by adopting general theoretical positions but must be grounded on a detailed examination of the workings of the criminal law - prominent among which is the practice of definition in the criminal law.