The rule of law and the political economy of criminalisation: An agenda for research
| Published date | 01 October 2013 |
| DOI | 10.1177/1462474513500619 |
| Date | 01 October 2013 |
| Author | Nicola Lacey |
| Subject Matter | Articles |
Punishment & Society
15(4) 349–366
!The Author(s) 2013
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DOI: 10.1177/1462474513500619
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Article
The rule of law and the
political economy of
criminalisation: An
agenda for research
Nicola Lacey
London School of Economics, UK
Abstract
This article argues for an institutional approach to criminalisation scholarship, drawing
on historical and comparative methodologies, and on the resources of several discip-
lines including law, sociology and political science. It goes on to sketch the sort of
research agenda which is implied by that approach, with a view to laying the intellectual
building blocks for a broad political economy of criminalisation within modern societies
committed to the Rechsstaat/rule of law. The article describes how this framework
developed out of recent work in the apparently discrete fields of historical and of
comparative studies, of doctrinal analysis of criminal law, and of socio-political analysis
of criminal punishment in modern societies. The main outlines of these projects are set
out in the first part of the article, which then moves on to consider how they may be
brought into dialogue so as to inform the construction of a further research agenda.
This agenda, which seeks to contribute to the building of a general understanding of the
place of criminalisation and punishment within the governance frameworks of various
kinds of social order which share a commitment to Rechtsstaat/rule of law ideals, is
sketched in the third part of the paper. In conclusion, the article argues that such a
research agenda implies an expansive conception of punishment and society scholarship.
Keywords
comparative analysis, criminalisation, historical analysis, political economy, punishment
What can the study of criminal justice contribute to our understanding of the rule
of law in modern societies? The answer to this question may seem too glaringly
Corresponding author:
Nicola Lacey, London School of Economics, Houghton Street, London WC2A 2AE, UK.
Email: n.m.lacey@lse.ac.uk
obvious to merit serious consideration. Shifts in the boundaries of criminalisation
and in the scope of punishment, as well as changes in the procedural protections
surrounding the application of nation states’ criminalising and penal power (shifts
which have been notable in many parts of the world since the 1970s), self-evidently
speak to the quality of the rule of law, and to the question of how completely the
values embodied in the idea and ideals of the modern Rechtsstaat are realised.
Increasingly, these links are also observable at a transnational level, as supra-
national political and legal orders move into the business of criminalising and
sanctioning states, corporations and individuals. Hence it is easy to argue that
scholarship on criminal law and penal practices across the world speaks to the
state and significance of the rule of law.
But is there any more systematic way in which we can study the relationship
between the rule of law and criminalisation in late modern societies? Or does
national and regional variation, as well variation across time and across institu-
tional levels, rule out a more synthetic or general project? It is worth asking these
questions, because the ideas of the Rechtsstaat and of the rule of law which animate
legal and political theory today – encompassing procedural tenets such as equality
before the law, prospectivity of legislation, judicial impartiality and a reasonable
degree of legal certainty, as well as, in some views (discussed later), substantive
ideals such as respect for human rights and democracy – are emblematic of a key
methodological concern in socio-legal and criminal justice scholarship. The two
concepts are themselves products of the generalising, analytic impulse, and in
intellectual discourse today are inflected in particular by the great Enlightenment
political and legal philosophies and by the great social theories of the19th century
(Lacey, 2007b; on the historical origins of the concepts, see Tamanaha, 2004: 7–59).
Yet they are also inflected by their specific origins in, respectively, continental
European and Anglo-Saxon legal and political traditions, and hence equally
seem to invite a more particularistic treatment.
In this article, I make the case for an institutional approach which, to some
extent, synthesises the generalising and systematising impulse with the imperative
to attend to difference. I sketch a framework which draws on both historical and
comparative methodologies, and on multi-disciplinary resources, to set out an
agenda for research which seeks to contribute to the building of a broad political
economy of criminalisation within modern societies committed to the Rechtsstaat/
rule of law. I explain the genesis of this framework in terms of work in which I have
been engaged over the last decade, in the apparently relatively discrete fields of
historical and of comparative studies, of doctrinal analysis of criminal law, and of
socio-political analysis of criminal punishment in modern societies. In the first part
of the article, I set out these two rather different projects. In the second part,
I explain how they can be brought into dialogue so as to inform the construction
of a more ambitious programme of research – sketched in the third section of the
article – which works towards a general framework for understanding the place of
criminalisation and punishment within the governance frameworks of various
kinds of social order which share a commitment to Rechtsstaat/rule of law
350 Punishment & Society 15(4)
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