Historicising Criminalisation: Conceptual and Empirical Issues

Published date01 November 2009
Date01 November 2009
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00775.x
AuthorNicola Lacey
Historicising Criminalisation: Conceptual and
Empirical Issues
Nicola Lacey
n
This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do
not havethe conceptual tools or empirical knowledge to make the claims about‘overcriminalisa-
tion’which motivate much of this scholarship.My argumentgives further shape to projects under
the umbrella ofcrimi nalisation, setting out someof the conceptual issues to be resolved beforewe
can worktowards an adequate interpretive,and normative, vision of how criminal lawhas bee n
and might be used.The paperelaborates a number of projects in ‘criminalisation scholarship’,and
suggests there is a failure adequately to distinguish the di¡erent senses of criminalisation’ in the
literature,or the varying methods which mightbe applied within historical, interpretive,a nalytic
and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of
criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda
informedby history, sociologyand politicalscience as much as by law,criminologyand philosophy.
INTRODUCTION
Overthe last few decades, criminal lawtheory has been enjoying a period of great
intellectual vitality. Riding on the wave of excitement generated by some key
works in normative crimina l law theory, notably H. L. A. Hart’s Punishment and
Responsibility,
1
a £ourishing ¢eld of studies analysing the ‘philosophical founda-
tions of contemporary criminal law has developed. It has been stimulated not
only by the interest of philosophers but by the increasing willingness of legal
scholars to reach beyond the con¢nes of doctrinal analysis into theresources pro-
vided and dialogue o¡ered by other disciplines.
2
The core notions of crimi nal
responsibility and action; the idea of and justi¢cations for punishment; the con-
tours of key doctrinalconcepts such as intention, recklessness and negligence; the
shape and rationale of the excuses;the proper contours of inchoate o¡ences and of
criminal compl icity:
3
all these have formed the objects of a rich, diverse and
n
My warm thanks go toAndrew Ashworth, Jeremy Horder and Lucia Zedner for helpful comments
on a draft of this paper. I amal so grateful for feedback from Antony Du¡, Lindsay Farmer, Sandra
Marshall, Massimo Re nzo,VictorTadros and other participantsi n a seminar forming part of the cur-
rent AHRCfunded project on Criminalisation.The paper was originally written for an MLR-funded
seminar on Citizenship and Criminali sation, organised by ElyAharonson and Peter Ramsay, held at
the LSE in December 2008; it waswr itten during myte nureof a Leverhulme Major ResearchFel low-
ship, and I acknowledge with gratitude theTrust’s support.
1 (Oxford: Clarendon Press,1968;second edition, edited and with an introduction by John Gardner,
2008).
2 In th is paper, I con¢ne my attention to work in the English-speaking world,and primarilyto work
analysing the developmentof criminalisation in England.The framework which I develop,how-
ever,would be of relevance to other jurisdictions.
3 An indicative selection would be:R. A. Du¡, Intention, Agency and Criminal L iability (Oxford: Basil
Blackwell,1990); C.Wells, Corporations and Criminal Responsibility (Oxford: Clarendon Press 1993);
R. A. Du¡, Criminal A ttemp ts (Oxford: Clarendon Press 1996); Michael Moore, Placing Blame
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(6) 936^960
extensive literature in the 40 years since Hart’s importantcollection appeared.The
general principles’ of criminal law have, arguably, never been more exhaustively
scrutinised or betterelaborated.
The ‘spec ial part’ of criminal l aw, though not the object of quite so much aca-
demic activity, has also bene¢ted from this renaissance of theorised criminal law
scholarship. Monographs and essays on the actual and ideal contours of the con-
duct proscribed by classic common law o¡ences such as rape, homicide and theft
have begun to (re)claim the attention of criminal lawyers and philosophers,
4
while criminologists and criminal justicescholars haveproduced some important
studies of particular areas of rapidly developing criminal regulation such as hate
crime, drunkdriving, fraud and drugs
5
^ ¢elds which, with some important and
honourable exceptions,
6
appear to have been less successful in capturing the ima-
gination of philosophically inclined scholars.
Yet, when it comes to attempts to theorise the special part as a whole ^ in other
words, when it comes to the question of the rationale forcriminalisation ^ we have
seen, until very recently,
7
a rather di¡erent picture. Here, as Leo Katz argued in a
thoughtful ess ay re£ecting on our l ack of any convincing account of the di stinc-
tion between ‘felonious and non-felonious villainy’
8
^ between, for example,
criminal deception and non-criminal lying ^ the ¢eld has hardly moved on since
the nineteenth century. Notwithstanding the e¡orts of some of the most distin-
guished legal philosophers of the late twentieth century ^ H.L.A. Hart and Joel
Feinberg
9
notable among them ^ the contending theories are much the same as
those debated 150 years ago: Benthamite, unrestricted utilitarianism
10
(re£ected
(Oxford: Oxford University Press,1998); R. A. Du¡(ed), Philosophyand the Criminal Law (Cam-
bridge: CambridgeUniversity Press,1998); M. Bovens,TheQuest forResponsibility(Cambridge and
NewYork: CambridgeUniversity Press, 1998); A. Norrie, Punishment, Responsibilityand Justice: A
Relational Critique(Oxford: Oxford University Press, 2000); P.Cane, Responsibility inL aw and Mor-
ality (Oxford:Hart Publishing, 2002); J.Horder, ExcusingCrime (Oxford:Oxford University Press,
2004); V. Tadros, Crim inal Responsibility (Oxford: Oxford University Press, 2005); R. A. Du¡,
Answering for Crime (Oxford: Hart Publishing, 2007); J. Gardner, O¡ence and D efence (Oxford:
OxfordUniversity Press, 2008).
4 J. Gardner and S. Shute,‘The Wrongness of Rape’ in J. Horder (ed), Oxford Essays in Jurisprudence
(Oxford; NewYork: Oxford University Press,4
th
Series, 2000) 193; N. Lacey,‘Unspeakable Sub-
jects, Impossible Rights: Sexuality, Integrity and Criminal Law’ in Unspeakable Subjects: Feminist
Essaysin Legal and SocietyTheory (Oxford: Hart Publishing,1998) 98.
5 J. B.Jacobs and K. Potter,Hate Crimes (Oxford:Oxford UniversityPress, 2000); M. Levi, Regulating
Fraud(London: Tavistock, 1987); J.B. Jacobs, DrunkDriving (Chicago, Universityof Chicago Press
199 2 ).
6 D. N. Husak, Drugs a nd Rights (Cambridge: Cambridge University Press, 1992); Stuart P. Green,
Lying,Cheatinga ndStealing:A MoralTheory ofWhite-Collar Crime (Oxford:Oxford University Press,
2006); M.N. Berman,‘On the MoralStructure of White Collar Cr ime’ 5 OhioState Journal of Crim-
inal Law (2007) 301 (an extended analysis of Green).
7 For an early example, see J. Schonsheck, On Criminalization (Dordrecht: Kluwer, 1994), which
should be recognised as a key contribution marking the revival of interest in criminalisation as a
distinctive issue of criminal law theory; see also R. A. Du¡a ndS. P.Green, De¢ning Crimes:Essays
on the SpecialPart ofthe Criminal Law (Oxford:Oxford University Press, 2005).
8 ‘Villainy and Felony’ (2002) 6 Bu¡alo Criminal Law Review4 51.
9 J. Feinberg,The Moral Limits of CriminalLaw: Harmto Others;O¡ense to Others; Harm to Self;Harmless
Wr o ng d o i n g (Oxford:Oxford University Press,1984^8).
10 J.Bentham, An Introductionto the Principles of Moralsand Legislation(1781; London: AthlonePress, 1970)
ed H. L.A. Hart and J. H Burns (Oxford:Clarendon Press, 2
nd
ed,1996).
Nicola Lacey
937
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(6) 936^960

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