Abstract
How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.
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Notes
Within the traditional philosopher’s approach a further distinction may be made between those of a formalist, or natural law-ish, or internalist, bent who believe that the relevant normative principles are internal to the concepts being analyzed, and those of a more externalist, or positivistic, bent, who take background political morality in some form to be the source of the relevant normative principles. This distinction, however, is not material to the present paper, however much it might matter in other contexts.
I am thinking here of Nicola Lacey’s distinction between legal and social constructions (Lacey 2002, p. 264).
As a referee for this journal pointed out, there are many varieties of critical criminology that would place other concepts such as force, desire, violence, symbolic identification at the core of critical criminological analysis. So it would not do for this paper to identify a focus on power with critical criminology as such. Nonetheless, the focus on power is characteristic of influential and appealing versions of critical criminology. With the above qualification noted, I shall continue to foreground it in this paper.
I leave it to the reader to decide how accurate the caricature may be.
Earlier versions of this paper were presented to the Political Theory seminar at the University of York, the Jurisprudence Discussion Group at the University of Oxford, the Department of Philosophy at the University of East Anglia, and the Canadian chapter of the IVR at the University of Saskatchewan, May 2007. I am grateful to all these audiences for criticism and discussion, especially to Nathan Brett’s commentary on the latter occasion. I also thank an anonymous reviewer for this journal for valuable criticism. My debt to Nicola Lacey’s work is obvious, and although she has encouraged this paper she should not be assumed to agree with it. The paper grew out of work for the Law Commission of Canada in 2005–06 in relation to their research project ‘What Is A Crime?’. I would like to thank Steven Bittle, Senior Research Officer for the Commission in charge of this project, for many conversations in person, by phone and by e-mail on the topic of the project: I learned an enormous amount from these conversations, although he too must not be supposed to agree with what is said here. The research was supported by the Social Sciences and Research Council of Canada, grant no. 845-2005-003: I thank the Council for their support. The paper was written during tenure of a H.L.A. Hart Visiting Fellowship at the Centre for Ethics and Philosophy of Law, University of Oxford. I am grateful to the Master and Fellows of University College, especially John Gardner, for their hospitality, and for providing a unique environment for philosophical reflection.
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Shiner, R.A. Theorizing Criminal Law Reform. Criminal Law, Philosophy 3, 167–186 (2009). https://doi.org/10.1007/s11572-009-9076-7
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DOI: https://doi.org/10.1007/s11572-009-9076-7