Re-thinking the Study of Criminal Law?

Abstract

All academic fields have their traditional divisions in ideology, style and subject matter. Legal study is no exception. Indeed, the creation of such divisions is intrinsic to the practice of labelling a 'body of knowledge' as unique and as belonging to one discipline or another. Much has been made and said of the emergence of so-called socio-legal studies and critical legal studies. These rather loose terms (which are frequently used but rarely defined) refer to diverse attempts by legal scholars in the last two or three decades to look beyond the traditional boundaries that have enclosed legal study. Socio-legal scholars wish to place different areas of law into their social contexts, to see the relationship of their fields to other disciplines and to see how their subjects actually affect the realities of social existence. The critical legal scholars are perhaps more distanced from their disciplines and are more concerned with de-constructing them, analysing their constituent parts and determining the philosophical and ideological premises on which they are based. Not surprisingly, these scholars frequently have drawn on critical political perspectives such as Marxism and Feminism. Obviously, the extent of the influence of these enterprises varies enormously between different areas of legal study, different institutions and different individuals. It is surprising, however, that the subject of criminal law as it appears on most law curricula and in most textbooks has, on the whole, remained immune to these interdisciplinary forces. As Lacey et al say, most courses and books on the subject revert quite quickly to 'the complexities of legal doctrine.' Despite the massive increase in knowledge about crime and criminal behaviour this century (particularly in the post-war period), the discipline of criminal law has continued to confine itself to the discussion of legal rules and their interpretation by lawyers. The explosion in criminal justice studies, the diversification of criminological theories and developments in the sociology of deviance have left intact the boundaries of criminal law. Ashworth's Principles of Criminal Law (hereinafter PCL), along with Lacey, Wells and Meure's Reconstructing Criminal Law, provides a notable exception to this tendency. The latter attempts to lay open the political and ideological forces behind