Inclusion, Exclusion and the Criminal Law

Abstract

The first section of this article clarifies the concepts of social inclusion and exclusion: three important features are that exclusion and inclusion are normative, not purely factual matters; that they involve agency, either active or passive (exclusion involves someone who either actively excludes or passively fails to include); and that the judgement that someone has been excluded depends on a view of the responsibilities of the supposed excluder. The next section then examines some of the ways in which the criminal law can serve as an instrument of exclusion or of inclusion: in virtue of its content; in the way in which it is enforced; through the criminal process, and in particular the criminal trial; and through the punishments imposed on offenders. However, the possibility of a genuinely inclusionary criminal law depends on the justice of the political and social structures that underpin it: if offenders have not been treated inclusively, as full citizens of the polity, the polity's right to call them to account for their wrongdoings through the criminal law is undermined. The conclusion is that the concepts of social inclusion and exclusion can play a useful role in a critical analysis of our political and legal institutions and practices, but that the ideal of an inclusive political community presents both governments and citizens with a demanding challenge.