Abstract
Criminal law is regularly characterized as society’s most powerful tool. Moreover, the core functions of this part of the law are destructive and primitive, and some of its sanctions extremely harsh (including, in some jurisdictions, death). The criminal law’s basic modus operandi is restricting the freedom of individuals: through punishment and, at the earlier stage, through connecting a threat of punishment to the conduct rule. Conviction for a crime is also followed, or so it is thought, by blame, signaling disapproval of the act (some of this disapproval might also spill over onto the actor in a more permanent way, even if this is not the idea).
This background is enough to make it important that the criminal law is handled with care and that we (not least qua judges, for those belonging to that group) can actually believe that the system is capable of operating in basically decent ways with respect to equal treatment, fairness, (demands for) blameworthiness, and so on. One problem, though, is that we may (and do) differ in what these values require; on what is relevant equality (in an unequal world), what are relevantly constructed demands for blameworthiness, and on how to best achieve each of these. One exception to such diverging opinions, though, is the traditional criminal law scholar, to the extent that he or she sticks to the nomenclature for the profession. This nomenclature is (or is said to be) a product of a wish to protect the individual against the powers of the State. It contains a ready-made set of views on a number of significant matters: the cosmology that the criminal law should have as a backdrop and point of departure; its place in the legal system and in society; how it should approach persons in situations, and much more. The traditional criminal scholar has this set of views – let us call it a map – because he or she acquired it as a student; ‘this is how one thinks about the criminal law’.
One central part of the map is that criminal law is so very particular that it should not be conceived of as part of – or even as in a relation with – anything else at all. It should be kept as a closed system – a bubble of its own – separated not only from the rest of the legal system but also from the particular society in which it is to exist and perform its tasks. On this map, criminal law is the opposite of porous.
Another aspect of the cosmology is that it presupposes a society structured as a ‘liberal democracy’ (which seems to encompass, e.g. the United States, on the one hand, and Sweden on the other: something that strikes me as a bit odd), with the related claim that criminal laws’ design and contents should be the same in any society (societies that are not liberal democracies should become liberal democracies, at least when it comes to the criminal law). The criminal law itself, then, is as non-situated as the person that is conceived as its subject. It is easy to see that parts of such a map could and need to be contrasted with also other possibilities regarding (descriptively) what the criminal law is and does, what it can be and do, and (normatively) what it should be and do. But only seldom are such alternative possibilities considered by someone who has access to the world within the map.
Such thoughts – as many others – come to mind when reading Alan Norrie’s collection of essays, Justice and the Slaughter Bench: Essays on Law’s Broken Dialectic. The book is a follow-up to his award-winning Law and the Beautiful Soul (2005). Norrie has access to the orthodox map and its attendant language, but also the capacity to stand free from it, something which makes his discussion particularly interesting and rewarding. After an introductory chapter, which gives a good introduction to, and summary of, what is to come, the book is structured into two major parts: ‘Law’s Architectonic’ (five chapters) and ‘Law’s Constellation’ (four chapters). In the first part, ‘Law’s Architectonic’, Norrie’s ambition is to address the question ‘how does the law judge?’ It is perhaps not ‘the Law’ as a whole which is mostly addressed, however (this might be emphasized in the light of what was said above regarding the view that the criminal law is unique): the main focus is on criminal law. Focus is on how this particular part of the law works (and is thought to work, respectively) from inside the system, and on how it constructs and handles its legal subject, a reduced being with strong fictional qualities. The self-image from within is one of a closed system: according to Norrie, ‘we have an autonomous subject understood within a self-referential, self-contained and, therefore, also autonomous system. I call this conceptual system, which involves both form and method, law’s architectonic of justice or judgment’ (p. 1).
But things are not so peaceful within this closed system as one might think: according to Norrie, the outside is ever present by and in the inside. He describes law as constituted at the conjunction of the social, the political and the ethical dimensions of life and…accordingly, socio-legal, politico-juridical and ethico-legal in its form. Such a constitutive setting is a recipe for conflict – emerging in the social sphere, generating political struggle, producing competing ethical demands. (p. 6) a self-contradiction in which two one-sided elements in an opposition are both required and inadequate to address a problem. The introduction of one and its ensuing failure leads to the introduction of the other, which in turn fails…They are two halves that cannot make a whole. (p. 7)
In the second part of the book, Norrie turns (more) to what he calls ‘Law’s Constellation’, an overarching question being ‘how should law be judged?’. The focus is criminal law’s (judgments’) place in, and its relations to, the whole of which it is part, including the broader social and ethical environment. This is the ‘constellation’: if we are to grasp law’s judgment it must be understood not only in terms of a deeper structural analysis of how its architectonic works, but also holistically, as it is related to specific social, political and ethical contexts…To grasp this sense of the place of the part in the whole, I use the concept of the ‘constellation’. This is the idea of the way in which things that are different and distinct nonetheless ‘stand together’…A constellation involves the interlocking of distinct entities to provide a sense both of the autonomy of the parts and their co-dependence in the whole. (p. 15)
Alan Norrie’s book is very well crafted and thoughtful in a way which invites the reader into a quiet, rewarding conversation with him. This conversation is multilayered, and when Norrie (as one might put it) makes maps not only for the landscape but also as a guide to existing maps –which inevitably renders parts of the discussion rather abstract – there is the regular use of concrete examples to help the reader to grasp the points made. The fact that Norrie’s book is rich in this multilayered sense makes it impossible to give an account of even a fraction of the interesting thoughts it raises in a brief review. What follow are just a few such thoughts.
The first concerns the shallow and (sometimes) allegedly decontextualized approach that the criminal law, at least according to many, should have when approaching a person in a situation; when constructing the rules as well as when applying them to a specific case with concrete individuals in a concrete situation. In the development towards this form, there has been more than one force, more than one ambition, at play, and they might not all be ideologically laden to the same degree. When reading traditional criminal law doctrine’s account of history here, specifically regarding the production of criminal law’s subject or person, one gets the impression that the driving forces behind the development – a development which perhaps might be characterized as a quest for decontextualization – were guided fully or at least mostly by a wish for (better) justice and equality, in the sense that persons’ belongings to groups (sex, class, ‘culture’ etc.) should not matter for the judgments made: an ambition often related to the French revolution and the blindfolded Lady Justice; society (and here the criminal law) should see only the Individual. The ambition, in this sense, was good, even if we may differ in opinion as to whether it also was successful. However, a system so designed only hides (and therefore in some sense gives legitimacy) to, for example, structural injustices that did not disappear just because one closed one’s eyes, and even (stronger) claims that ideas of liberty, agency, responsibility ‘are the means by which the master’s work of enslavement is carried out’ (p. 168). But there might be another and parallel story, not as easily classified as either good or bad, to tell in relation to the construction of the fictionalized individual in criminal law. This story has mostly been related to civil law, to the needs of the market, and so on: the need to create the legal subject, a being reduced to a few characteristics that could assume the role needed in a society that wanted to formalize, facilitate and hence speed-up the interactions of the market. Similarly, the criminal law has needed to facilitate its transactions (even if they are not of the financial kind); to be swift, in order to be effective. The criminal law’s person might to some extent be a product also of this.
A second reflection has to do with the role of political philosophy when we think about criminal law. Norrie correctly points at – and correctly problematizes – the very tight connection between, on the one hand, criminal law (theory) and, on the other, moral philosophy. This would be less of a problem if such a tight connection did not exclude other natural connections. But it does: we may very well spend a great deal of time digging deep in classical issues of moral philosophy, but for digging in political philosophy there seems to be basically no room at all in the traditional cosmology of criminal law. When we leave moral philosophy, concerned with what we might call horizontal, interpersonal, relations, and turn to ‘vertical’ philosophy – how should society qua society relate to individuals – then all is already set, including a reduced picture where criminal law should be seen as an encounter between only two actors: the State, evil or potentially evil, and the individual, in need of protection against this State. No connections exist between them, no society creates bridges between them. If we wish – as I do – to envisage a richer potential understanding of criminal law, then this is one further area where criminal law scholars need to do a lot of work. Criminal law is political law, and very much so.
To conclude, Alan Norrie’s Justice and the Slaughter Bench is highly recommended to anyone – not least criminal law scholars – who wish to gain a deeper, more complex (and more correct!) understanding of the mechanisms of criminal law. This is so for scholars working in the Anglo-American tradition where Norrie is situated but also for readers outside this tradition, in at least two distinct ways: (1) on a general level, through the deeper understanding that the book offers regarding the criminal law’s points of departure, mechanisms, ‘constellation’, and so on and (2) more on a particular level, where seeing ‘the devil in the detail’ in relation to, for example, mistaken self-defense might help to realize (a) that we somehow often have the same dogmatic problems in various jurisdictions, (b) that we might solve them in different ways, and (c) that what was already settled and clarified can, and should, be again discussed and perhaps again blurred.