Williams, The Definition of a Crime, 8 Current Legal Problems (1955) p107

8/12/2019 Williams, The Definition of a Crime, 8 Current Legal Problems (1955) p107

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Social & Legal Studies

DOI: 10.1177/0964663996005001041996; 5; 57Social Legal Studies

Lindsay FarmerTheory

The Obsession With Definition: the Nature of Crime and Critical Legal

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THE OBSESSION WITHDEFINITION: THE NATURE OF

CRIMEAND CRITICAL LEGAL

THEORYLINDSAY FARMER

Birkbeck College, University of London

It is now rather unfashionable to begin law books with definitions. (Smith andHogan, 1992:17)

HE CRIMINAL-LAW TEXTBOOK embodies the supreme positivismt of the law. The moral, political and social dimensions of the law are

tantalizingly raised and dismissed in a single movement in favour ofgrinding technical discussions of legal minutiae. Entire chapters and manyhundreds of footnotes are devoted to such arcane issues as impossible attempts or

the precise meaning of subjective liability.As if this werent enough,we are

continuously reminded by the authors of how uniquely enjoyable the criminallaw is supposed to be to students. It alone is said to capture the rich tapestry ofhuman life - though our experience in the classroom suggests otherwise. Thestandard opening chapter illustrates perfectly this uneasy relationship betweenthe criminal law and what, forwant of a better term, might be called its moral andsocial context. It is, invariably, on the definition of crime - seeking to define thescope of the work and so, more or less implicitly, the object of the criminal law.While, as Smith and Hogan are aware, it may be unfashionable to begin law

books with definitions, fewseem

capableof

resisting. Noamount

of tinkeringwith the order and style of presentation can alter the fact that the authors of theaverage criminal-law textbook are, and are perhaps destined to remain, deeplyunfashionable.

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The safe path through the difficult opening chapter is now well established. It

must be acknowledged that general issues are raised, but at thesame time some

explanation must be offered for their absence from the rest of the text. Theargument normally contains some or all of the following distinctions: it ispointed out that there is nothing intrinsically criminal about certain actions andthat the same action may have consequences in both civil and criminal law; acrime may be, but is not necessarily, a moral wrong and vice versa. This may beput in some limited historical context by reference to the changing relationbetween crime and sin, as represented in the distinction between mala in se andmala probibita. This is brought into the criminal law by reference to thedistinction between

felonyand misdemeanour,

althoughit is

pointedout that

this has little currency in the modem law.3 We may then try out the definition ofa crime as a public wrong, harming state or community, but this too is found tobe inadequate or inaccurate. The discussion will normally be brought to anuneasy conclusion with a definition of the following type:

A crime is an act capable of being followed by criminal proceedings having acriminal outcome, and a proceeding or its outcome is criminal if it has certaincharacteristics which mark it as criminal. (Williams, 1955:130)

On the basis of this wonderfully circular definition, the criminal law may thensafely be defined as, that branch of the law which deals with those acts, attemptsand omissions of which the state may take cognisance by prosecution in thecriminal courts (Gordon, 1978:15) - a definition so circular that it makes youdizzy to think about it! Still reeling, we are moved swiftly on into saferdiscussions of the positive rules ofcriminal law.And that is it. This difficult brushwith context having been safely negotiated, we are never to return to thesecomplex and difficult issues.

Nonetheless, I find this question of the definition of crime to be fascinating -

assuming, as I do, that it is neither included simply by reason of inertianor

to beexcluded for reasons of intellectual fashion. Why such evident unease? Why,indeed, raise the question at all if it is only to be resolved with such an apparentlytrite, formulaic and unsatisfactory conclusion? What is its significance that itmust be included? This is the mystery that must be solved.

My argunient addresses these questions, but it is worth pointing out that thereis a deeper concern - the question of critical method. I want to ask the question ofwhy critical approaches should have responded so inadequately to the challengesof developing a radical approach to the criminal law. In addressing this I have thelinked aims of

challenging,and

attemptingto

develop,the existing critical

method and showing how such a critical methodology might be applied to thecriminal law by opening out the analysis of the central question of definition. Itseems to me that the failures of critical legal studies stem, at least in part, from afailure to engage with this - hardly surprising, it might be added, since it is notsomething that on the face of it demands to be taken seriously! It is not, I think,that we need to answer the question What is a crime? This has occupied criminal



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lawyers for quite long enough and does not in any case seem to be the mysterythat requires a solution. However, understanding why it was asked and how thisbizarre, circular answer should have achieved respectability will, I believe, takeus some way closer to an understanding of the modem criminal law.The key point is the acceptance that crime, as the object of the criminal law, is

not something that is fixed - this is axiomatic for textbook writer and critic alike.This being so it should not surprise us that the process of definition should havebecome the focus of critical attention. Going further, I argue that it is less thequestion of the content or values of the law that is of central importance than thatof the relation between the criminal law and its object. With this in mind, and tocome closer to an

understandingofwhat this relation

might be,Ipursue

the

idea,for the sake of argument, that the positivist definition of crime is in fact a trueone.As a preliminary step, however, it is necessary to review, in a ratherschematic form, the approaches currently taken in critical legal theory.

CULPABILITYAND CRIMINALIZATION

One possible starting point is criminal law itself: not its structure and content but

rather the process of its creation and the groups who have the power to define anddevelop it. (Lacey et al., 1990:12)

Conventional criminal law theory presents a two-dimensional picture of the lawwhere two sorts of problem are envisaged: first, the attribution of responsibility(culpability); and second, the limits of the law (criminalization).4 Both are treatedas being primarily problems of moral philosophy and are normally determinedby reference to some version of moral individualism. This is regarded as theproper means of establishing both the general conditions under which an

individual may render himself or herself liable to punishment (the general formof the law), and the particular types of harm that may be punished (and hence thescope or content of the law) - although there are internal disagreements in thetheory as to where these boundaries should be drawn.

Critics have been justly impatient with the limitations of this model, and thespecious unity that is obtained through this form of moral or juridicalindividualism. Law is not a wholly rational enterprise, and to view it as such is toflatten out any number of complex issues. It is simply too narrow to see it as apractical application of liberal political philosophy (Farmer, 1992; cf. Fletcher,1978: xix; Norrie,

1993:12).And

yet, perhapsrather

surprisinglyin view of its

ambitions to provide a fundamental critique of modem law, in the area ofcriminal law critical legal studies has struggled to escape from this two-dimensional schema, and provide a truly persuasive critical account of the law.Starting from the assumption that the law could be otherwise, critical argumentshave generally followed one of two paths - concentrating either on the questionof culpability or that of criminalization5 - that have left them practically



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indistinguishable at times from more conventional theorizing. It is not by

chance, I would suggest, that the most convincing critical accounts of the lawhave come in the analyses of particular crimes which have escaped the straitjacketof this rigid distinction between form and content.The first approach can be seen in the work ofAlan Norrie, most recently and

importantly in his book Crime, Reason and History (1993; cf. 1991). Concen-trating almost exclusively on the form of legal responsibility, he argues that theconflict between the abstract form of juridical individualism and the socialcharacter of action gives rise to the contradictions inherent in attempts toconstruct a coherent general theory of criminal liability. The rationality of thelaw is

only apparentor

ideological, paperingover

deepersocial contradictions

bymanipulating the space between abstract form and social context. The criminallaw is, thus, seen as a means of managing the contingency of social relations -the product of a particular kind of society generating particular forms of socialcontrol peculiar to itself (1993:9). However, there seem to me to be threeproblems with this approach.The first concerns the significance of contradictions. Norries argument seems

to be that the contradictions of legal reasoning derive from the unsuccessfulattempts of legal discourse to exclude &dquo;external&dquo; realities, and police theborders of the conviction process ... against contextual raiding parties(1993:223). The abstract and rational legal form is thus corrupted by thecontinual intrusion of the context in which the law operates. However, this beliefin the critical power of context is based on the assumption that the legal form isabstract and rational. Ironically, Norries demonstration of the contradictionsand inconsistencies of legal discourse suggests that it is not structured andsystematic and, if anything, that the contradictions are internal to the legal form.Far from demonstrating the limits of legal rationality, such contradictions mayactually be characteristic of the legal form. It may be more plausible to explorethe ways in which the play of contradiction is productive for the law, rather than

seeing it as something that must be excluded. This takes us to the secondproblem.Norries response to the preceding comments would surely be that the

resulting inconsistencies in the law must be understood historically in terms of atension between legal individualism and social individuality (1993:14-16, andch. 2). There are deeper social and economic contradictions, and critical method,thus, entails exposing the gap which the law seeks to conceal.Although it isunquestionably valuable to make the point that the individualism of the law is notnatural and given but historically contingent, this claim does not necessarily have

any

critical force. Of course, and this is the final

point,Norries

argumentis that

as an abstraction from social reality the legal form is in some sense both arbitraryand wrong - both at the level of the systematic injustices of legal doctrine and inthe way that individuals have cases constructed against them. The remedy, then,is to study the law in its social context. The problem with this surely is that it doesnot go far enough. In recognizing the historical contingency of legal categories itlooks neither at the contingency of the distinction between form and content norbetween the law and its context. Thus, while arguing that the law is structured in



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such a way as to manage its own contingency (1993: ch. 11), Norries critique of

the law ends up reproducing the structure whereby that contingency iscontained. This sets up the critical question in an unduly narrow way,reproducing the rigid distinction that conventional criminal-law doctrine drawsbetween questions of culpability and content and leading to the wasting ofmucheffort on the question of where to draw the boundary between the law and itscontext. To take up a point made by Lacey, she argues that at times Norriehimself seems to be seduced by the doctrinal story he seeks to deconstruct(Lacey, 1994: 259). This approach, I would argue, must be pushed further for atpresent it is pulling its critical punches.The second

approach adopted bycritical

legalscholars focuses on criminaliz-

ation, the process whereby certain actions are made criminal. If we are to identifyour subject matter, argue Lacey and colleagues, we must enter upon somebroader reflection about how our society comes to define &dquo;deviance&dquo; (1990: 3).This might focus on the way that certain groups or classes of people arecriminalized by criminal-justice agencies or look at the way in which certainclasses of actions are brought within the scope of the criminal law by beingdefined as crimes. There is a keenness to demonstrate that the lessons of the

sociologists of deviance and radical criminologists have been learned within thelaw school. Crime is symbolic, amplified, socially constructed, gendered,class-based and so on. However, even as this approach rejects the suggestion thatthe content of the criminal law could be a solely moral issue concerning theapplication of the harm principle or whatever, it is simply offering a range ofdifferent answers (all of which contain some truth) to the question of thedefinition of crime. They expand it to include crimes of the powerful. They lookat the defining process, for it is clear that crime is defined by legal actors otherthan judges. Criminal-law courses may now pay the right amount of scholarlyattention to criminal justice (Nelken, 1987). Whether criminal law is regarded asthe product of policy or power, however, the focus remains on the shiftingboundaries of criminalization (Lacey 1995). That is, the emphasis is placed on theway that crimes are defined, forever expanding the context in which the criminallaw can be seen to be constructed. What are we to do with all these insights? Itmay properly be claimed that it is important to understand the contingency ofthe criminalization of certain individuals or groups, but too often this is allowedto collapse into a weak relativism, the endless demonstration that things might beotherwise. It is inadequate simply to collect everything together and hope that itall makes sense. In this respect this approach might be termed reductivist/ to theextent that it operates with a fairly unspecific sense of law.As the context is

broughtin, the law is

inexorablyreduced to that context.

Thus, while our knowledge of the criminal process is expanded - along withthe curriculum (Alldridge, 1990; Coombs, 1988) - the criminal law comes to beregarded as something that is indistinguishable from other practices of socialcontrol. In Laceys words, it is increasingly difficult to be certain where theboundaries between criminal and non-criminal enforcement can be said to lie

(1995: 21). This has worked best in analysing the way in which particular crimeshave been formulated and enforced over a period of time or in particular



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circumstances - though this may in practice turn out to be virtually indis-

tinguishable from more mainstream scholarship (cf. Wells, 1993, with Horder,1992; Nelken, 1987:152). The problem, once again, is that the contours ofconventional criminal law theory are accepted. We are shown a broader picture,but it remains two-dimensional. No attempt is made to look at how the relation

between the criminal law and its object is constructed. It is to this that we mustturn in the following sections.

I am certainly guilty of having unduly simplified these two approaches, sinceclearly they have produced a more complex challenge to conventional ways ofthinking about the law, as well as stimulating further critical enquiry. Yet a

problemremains. If we know that crime is

sociallydefined and that it would be

deeply unfashionable not to study law in its context (whatever that means), wehave not yet been brought closer to an understanding of the criminal law as awhole.A properly critical approach must move beyond this narrow focus on theseparate elements of culpability and criminalization and look at how thisdistinction is actually instituted from within the law. We have concentrated toolong on the demonstration of something that seems to be acknowledged by thecriminal law - that the content and categories of the law are contingent. Let usreturn, then, to the original question of the definition of crime.

THE DEFINITION OF CRIME

I learn that some beginners find Chapter 1, in its attempt to define the nature ofCrime, exceptionally difficult. Those who do so, I advise to postpone its perusaluntil after they have read the rest of the volume. Definitions belong, indeed, ratherto the end of our knowledge than to the beginning of it. (Kenny, 1918: Preface)

Attempts to provide a definition of crime certainly do appear to be obscure andunsatisfactory or, in the words of one commentator, sterile and useless

(Fitzgerald, 1960: 257). It is nonetheless instructive to review these attempts, themajority of which appeared between the beginning of this century and the late1950s, simply to get some sense of the concerns which were addressed.The classic formulation is contained in Kennys Outlines of Criminal Law.

First published in 1902, the book went through 19 editions, of which nine wereunder the supervision of the original author. The first chapter, The Nature of aCrime, survived with small modifications until the sixteenth edition when it was

relegated to an appendix, and printed along with certain key criticisms.Subsequent editions of the book dropped it altogether. No longer valued for its

conclusions,it was still

regardedas a

splendidmodel of

legal presentation, clear,eloquent, and in the highest degree instructive (Kenny, 1952: 547). It is aremarkable piece, differentiating as it does between no less than eight potentialdefinitions of crime.

It begins by looking to see whether there is something about the act itselfwhich renders it distinctive. The first definition is thus based on Blackstonesstatement that a crime or misdemeanour is an act committed, or omitted, inviolation of a public law, either forbidding or commanding it (1765: iv, 5). The



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second, also drawn from Blackstone, delineates a crime as a public wrong, a

violation of the public rights and duties, due to the whole community,considered as a community (1765; cf. Hall, 1960). These are considered to beadequate as rough general descriptions, but insufficient to constitute a preciseformal definition holding true for all crimes.Accordingly Kenny moves on to thethird which is that crimes are those legal wrongs which violently offend ourmoral feelings (cf. Allen, 1931:233-6). This also is held to break down inpractice.At this point the quest for a quality that is intrinsic to the act isabandoned in favour of extrinsic features. Fourth up, then, is a consideration ofthe respective degrees of activity manifested by the state in criminal and civil

proceedings,and fifth that the

proceedingstake

placein different tribunals. Both

are considered to fail because of the existence of certain proceedings on theborderline between civil and criminal, where the function of the state could becarried out by private parties for their own benefit. Sixth, the possibility thatpunishment is always the aim of criminal proceedings, and never of civil ones,was felt to be getting nearer to the target, but was still inconclusive because civilproceedings could at times be brought with a punitive aim. The seventhpossibility, barely considered, is that of a difference in the nature of the sanctionsthemselves. The crucial difference is then sought in the respective degrees ofcontrol exercised over the proceedings by the sovereign, and particularly in thematter of their termination and the exercise of the royal prerogative.&dquo; Thus theeighth and final definition: [A] crime is a wrong whose sanction is remissible bythe Crown, if remissible at all (Kenny, 1902:15).

It is not difficult to find fault with the eighth definition. Winfield (1931:197;see also Kenny, 1952: 547) points out that its main substantive weakness stemsfrom the fact that the scope of pardon could only be determined by askingwhichsentences were of a punitive character, thereby throwing the enquirer back ontoone of the previously rejected definitions (number 6). The alternative was plainlycircular, an outcome which Kenny had clearly wished to avoid: a pardon only

applies to crime, therefore crimes are those actions that can be pardoned. Inanother sense the definition is plainly absurd, since it would have to follow that ifthe royal prerogative were to be abolished, this would logically entail theabolition of crime (Pollock,1959: 496). These criticisms need not detain us here,save as comment on the futility of the search (Fitzgerald,1960: 261 ).

Here, my quest would also end were it not for a highly influential piece byGlanville Williams in 1955 which, as is the case with much of his work, has had acrucial impact on subsequent understandings and definitions of the law - and inparticular in shaping the formulaic expressions described in the introduction.Williams

acknowledgesthe intractable nature of the

question:The definition of

crime has come to be regarded as one of the thorny intellectual problems of thelaw (Williams, 1955:107). However, he boldly cuts the Gordian knot by thesimple expedient of limiting his task to that of framing a definition of crime thatwill state the legal use of the word (1955:109).As a result certain definitions canbe immediately discounted. He follows Kenny in rejecting the possibility thatthere is some quality intrinsic to the criminal act, dismissing in passing the effortsof C. K.Allen and Jerome Hall to re-establish some moral or public basis for the



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definition of crimes. He constructs a formal definition of crime, in which it is

defined by reference to the legal consequences of the act, arguing that the legalphenomenon of crime has no reality beyond that created by the working ofcriminal justice (1955: 123). 10 The strength of this definition is seen to rest on thefact that it is supported by authority, reproducing the traditional legal distinctionin the realms of jurisdiction, procedure and sanctions. It is notable also that theend result is similar to Kenny, although it is both wider, in the sense that it relieson the whole of criminal procedure rather than a small and rather anomalouselement, and narrower, in that by circumscribing the task of definition theambition of providing a definition that will hold good for all legal systems at alltimes is abandoned.

So,in this

waythe

purely legaldefinition of crime is rescued

from the unwelcome attentions of certain criminologists and philosophers(1955:130).The impact of this approach on the criminal-law textbook should by now be

clear. What is perhaps less clear is the question of what we stand to gain by theretrieval of certain long-forgotten writings on the criminal law. The (self-proclaimed) value of Williams is seen in the definitions practical assistance tolawyers (Fitzgerald 1960: 260-1; Williams,1955:107) - and it is by expanding onthis apparently unpromising insight that I want to argue for its significance. Todo So, it is necessary to understand something of the circumstances within whichthe pursuit of a definition took place. There are two possible contexts in whichthe obsession with definition may appear to be rather less obscure. First, it clearlymakes sense as an episode in the history ofAustinian, or analytical, jurispru-dence,&dquo; although I do not go specifically into this at this point, since I want toargue that this positivism should not be seen only as a moment in legal thought,but as a response to changes in legal practice (cf. Fitzpatrick, 1992:141 ff.). Thusthe second context is that of a series of English and Scottish cases in thenineteenth and early twentieth centuries in which the question of the distinctionbetween civil and criminal jurisdiction was explicitly considered by the courts.&dquo;

According to such prominent writers as Henry Home, Lord Kames (1792)and Sir Henry Maine (1917), one of the characteristic features of modem legalsystems is a distinction between civil and criminal jurisdiction. Generally, it isconsidered that these lines were drawn relatively early in the history of the law, ascertain delicts, or private wrongs, came to be regarded as wrongs against the state.These nineteenth-century cases suggest, however, that not only were thesequestions of jurisdiction far from being settled but also that to characterize themodem law in terms of this distinction might be unhelpful.Many of these cases arose in relation to the new summary and administrative

offences that were

beingcreated

bystatutes such as the PoliceActs. These created

offences to which the only penalty attached was a fine, thus raising the questionof whether the penalty was criminal.3 Later, similar questions arose under 47of the JudicatureAct 1873, which states that there was no appeal to. the newlycreated Court ofAppeal from criminal proceedings.&dquo;Although the answer tothese problems was sought in a reference to the nature of the offence, they couldnot be resolved by means of the traditional categorization of crimes as publicwrongs.Accurate as it might once have been as a means of distinguishing



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between civil and criminal jurisdiction, it could no longer bear the load that was

being placedon it15 since the issues raised

bythese cases

largelyinvolved minor

offences arising from particular regulatory provisions with no apparent referenceto larger questions of moral right and wrong. The line taken by both English andScottish courts was thus that proper criminal offences could only bedistinguished by reference to the practice of the criminal courts, and in particularthe matter of whether the object of the proceedings was punitive.While this would appear to be a minor technical question, of little apparent

importance to the development of the great lines of distinction in jurisdiction, Ifind it nonetheless revealing. The clarification of the division between public andprivate right was sought in neither moral nor political categories but through acharacterization of the proceedings. One of the principal Scottish proceduralstatutes states that the determining factor was not to be the nature of the offencebut the style of the libel and the character of the proceedings.6 In other words,crime was defined by the development of stricter procedural rules, thespecification of criminal proceedings. This finds its clearest expression in theemergence of summary jurisdiction (Farmer, forthcoming).The nineteenth-century expansion in the business of the summary courts

created bureaucratic demands for the administrative processing of large numbersof people, or the regulation of the administrative distribution of bodies within the

criminal justice system. This demand was met by the development, among otherthings, of a more rigorous and systematic body of procedural law. Under thisnew body of law, jurisdiction was not defined primarily in terms of competencerelating to a geographical space, the nature of the crime or the power of theparticular court to punish - as had traditionally been the case. Instead the decisivefactor was the type of procedure used. To be sure, this approach does not escapecircularity - indeed, it positively celebrates it - but it roots the solution to theproblem that the new laws give rise to in the newly developing procedural rules.Going further, we can say that the distinctively modern form of criminal

jurisdictionis founded in

procedural law,and that the mark of the

modernityof

the law is less a matter of the division between civil and criminal jurisdiction thanit is the emergence of this new reliance on procedural law.

This underlines a more general transformation in the legal order that occurredin the course of the nineteenth century (Foucault, 1991; Murphy, 1991).&dquo;As thepolitical order was secured against the threat of external domination and internalrevolution, there was a movement towards the more intensive regulation orgovernment of territory and the population of that territory. Criminal justicebecame a matter of administration and security, increasingly less concerned withthe establishment and protection of sovereign power. So, as the substantive

jurisdiction of the criminal law changed, with the increasing predominance ofadministrative or police offences, there was a subtle change in the way that theobject of the criminal law was conceived (in relation to social order). There is, as Ihave noted, a movement away from regarding crimes as actions that offendagainst the community or justice, as this had been constructed through themirror of political order (public wrong). Crimes instead come to be seen asactions that offend the community in its social interest or welfare, which is the



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aggregate of individual interests as this is known through the new social

knowledges.That criminal law can then be defined

only accordingto the

positivecriterion of whether an act is tried under criminal proceedings simply reflects thediversity of functions of law in the interventionist state. There is no single, simplemoral or other purpose that is capable ofholding the whole together. It cannot bethat we fall back onto the definition of crime as an act that harms the community(substituting community for state or public interest) for this is merely to reflectthe same tautology (i.e. what harms the community - a crime) dressed up asmoral or political theory.&dquo; The specifically legal character of modem criminaljustice cannot be so easily hidden.

Further evidence of this shift, if it were needed, can be seen in the emergence of

the reasonable man as the emblem of the modem criminal law.9 While often

regarded as the personification of the subjectivity of the modem law, this couldnot be further from the case. He is not the ideal legal subject but the means bywhich the object of legal regulation is conjured up. He stands as the devicewhereby the social interest of the community can be represented in law, therepresentative of the community, whose individual interests can be made tostand for the whole as the ideal representative of average interests. The concernwith reasonableness is a feature of the modern law alone, and it is consequentlya mistake to imagine that the society of the criminal law is composed of rational,

calculating individuals; rather it is composed of individuals who can be knownand calculated - subjectified - through reason. It is the means by which thediverse interests of the modern law and the imagined community can beconnected, a transformation in the measurement of objectivity. Through thisdevice judges labour to connect the operation of the law to community feelingsor community interests. The difficulty that legal theory must face is that just ascrimes are no longer public wrongs, so too the criminal law has lost anyconnection that it might once have had with community. Criminal justice is notthe expression of community values. Guilt, punishment and harm have become

legaland administrative

categories.In the concluding section I want to argue that we can only give due weight tothese considerations by taking up this question of the definition of crime. Itstands both as a key to an understanding of the emergence and character of themodem law and as a means by which the contingency of the modem law ismanaged. We can no longer look at this question, then, in the narrow sense of thesubstantive content of the criminal law but have the wider task of developing atheory of criminal jurisdiction.

CONCLUSION: CRIMINAL JURISDICTIONThe law relating to crimes and punishments forms what is termed in every countrythe criminal code; though if it only does that which is right, it seems unjust to call itcriminal. (ABeckett, 1887: 247)

This rather schematic historical survey brings me to three important conclusions.The first of these is that the positivism of the law, which is such a marked, and



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remarked upon, feature of nineteenth-century (and contemporary) jurispru-dence

actually tells somethingabout how the law

is, reflectingan

importantchange in the nature of legal practice. To put this in its strongest form, it is toclaim that it is actually a condition of the operation or function of themodem lawin the diverse forms that it takes. It is not simply an ideological practice, theattempt to produce the appearance of neutrality as the corollary of anever-deepening social intervention (Norrie, 1933: chs 1-2); though, equally, thatis not to exclude the possibility that the law is not also ideological. By the sametoken, it cannot be regarded as being the sole product of late eighteenth-centuryutilitarianism (Williams, 1955). Legal positivism is classically recognized in thetheoretical cleavage between legal and moral values,2 between posited andnatural law - although it is also clearly visible in the distinction between legalform and content, the belief that valid law may have any content.As we have seenthis theoretical transformation has its counterpart in institutional and social

practice. The truth is that the positivism of the law reflects something of theawkward reality of the modern criminal justice system, and this is something thatshould be taken much more seriously. It follows from this, as critical theoristsrecognize, that if the law is contingent, because it is posited, it is necessary to lookat how this is managed at the level of legal theory. The first important differencethat I propose is the insistence that the theoretical distinctions that are produced

by the practices must also be subjected to critical analysis.&dquo;The second conclusion, which relates to the significance ofprocedure, followsfrom this. It should by now be abundantly clear, reinforcing the claim that wasmade earlier, that the modem criminal law accepts, and is predicated upon, theidea of contingency. Williamss definition of crime makes this explicit, in itsargument that there is no object outside the process that defines it (1955:107). Itis thus a decidedly weak critical strategy to indulge in the rediscovery of thecontingency of the law. More importantly, the central importance of procedurein defining, regulating and administering within the modem legal system hasbeen

cruciallyunderestimated.Attention to the

positivistdefinition of crime

directs us towards this rather important truth. Rather than looking at the objectof definition, we should look at the relations between that object and the definingprocess. However, it is important to underline what this is not! One obviousresponse to this claim is to point out that the study of the process of the law isprecisely the type of contextual study of criminal law and justice that is beingundertaken anyway. Indeed, it might be added, this is to do no more than issuggested by the Williams definition anyway - trying to reclaim the definitionfor criminologists and philosophers !~~ This seems to direct us towards the studyof law in context or the law in action to demonstrate the ways in which it is

inadequate; but this misses the point.The issue is not one of description but definition - a distinction which can be

illustrated by considering the disjuncture between the study of criminal law andcriminal justice, so beautifully and comprehensively documented by Nelken(1987). Why should it be that in spite of our ever-expanding knowledge of thecriminal justice process we should still fail to gain any critical purchase on thecriminal law? There are two distinct questions here and there is a tendency to



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treat them as though they were identical. The one is the question of the particularcontent and uses of the criminal law

(ordefinitions of the

law)at

any particularpoint in time. The other is what might be termed the secondorder question ofhowtheproblem of definition is solvedby the legalsystem-what I term the problem ofcriminal jurisdiction. The reason for the disjuncture is that the definition must act,more or less successfully to stabilize the legal system against such competingdefinitions, instituting the distinctions that prevent the reduction of the legalinstitutionto something outside of the law. Tofocus on this latter question is not toargue thatwe ignore the former - how the law is used and who is criminalized andso on. Farfrom it, for it is only through such understandings thatwe can attempt todestabilize the definition. However, it is to place the problem of definition at theheart of the critical relationship between theory and practice. We cannot begin tochallenge the particular definitions until we begin to understand why and howthey are important to the law.The third conclusion, then, is that we are being drawn towards a new

understanding of the peculiar nature of contingency. It must be stressed thatalthough the content of the law (or its practices) may be contingent in a historicalsense, this is not true in the same way of the defining process. Thus, while it is trueto argue that things could be otherwise, itdoes not necessarilymean that things canbe otherwise at a particular point in time. To put this in anotherway, it is to argue

that there are limits to the openness of legal discourse.An important point aboutthe definitions of crime is not that they do away with diversity, but that they mustbe read as a powerful attempt to impose order on the unruly practices of the legalsystem. Clearly, Williams does not solve the problem of definition - theprocedures and sanctions are diverse and do not ofthemselves impose unity on thecriminal law (Lacey,1995 :16-21 ). Yet it is this factor thatmay be said to have givenrise to the circularity ofthe definition in the first place. It is precisely because of therecognition of diversity that it takes the form that it does! The generality of thedefinition provides the means of coping with this diversity. Contingency hasbecomethe

necessity of law,and the tradition of law can be understood

preciselyas

a way of managing this contingency. The critical question is therefore that of ourorientation towards the way that the legal system selects between the variousalternatives (Luhmann, 1988).All of thepreceding argument can be put in a more positive fashion if we begin to

describe the task for critical legal theory as that ofconstructing a theory of criminaljurisdiction. This requires a tracing or mapping of the actual changes in criminaljurisdiction over time, in the widest possible sense. We must see the law as anetwork of practices - whether it be that of enforcing the law or the practice ofproducing a theory of criminal law. Both are forms of policing. The one is the

policing of the boundaries of the permissible, the other the policing of theoreticalboundaries. This requires looking at the types of behaviour that are censured, thetypes ofpunishment and the relationship between the two: who is subject to thelaw and under what circumstances; the apparatus that is capable of enforcing andadjudicating on the law; the boundaries ofthe permissible and also the boundariesand internal ordering of the legal system; and the way in which institutions andpowers are distributed over a legal space.At the same time it is more than this. We



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must also concern ourselves with jurisdiction in the sense of the power to speak

the law (juris-dire) (Ewald, 1986; 1988;see

also Deleuze, 1988:23-44). This isnot only the issue of how the law sustains its own identity in the face ofcompeting discourses and practices. It requires also that we look at the lawsreflexive account of itself; the providing of an account of the law that isauthoritative and renders these practices intelligible. This goes beyond theconceptual structure or form of the law, both because in making the otherpractices intelligible it also includes them and because it must be an account oflegal authority - in the narrow sense of precedent and in the broader one of theestablishing of an authoritative account of the origins and operation of the legalsystem. In doing this it is important not to reify these boundaries of the law in theway that traditional criminal law theory has done. Rather, by concentrating onpractices in this way we can try to get some purchase on the question ofhow theobject of the law is produced. The question is that of the possibility of legal order,in a threefold sense: What is produced by legal order and how? What are theconditions of legal order? and finally, What is the order of law?

If this seems unduly abstract or vague, I can only point out that it is just thisprocess of reconstruction that I have been through with the question of thedefinition of crime. The centrality of this issue should now be clear. On the onehand this is because in looking at this we have found a way of critically examiningthe way in which the object of the criminal law is constructed. Challenging thebanalities of the conventional formulations, we were led to ask how the relationbetween law and its object was constructed, thereby raising the issue of criticalmethod. In its most simple formulation, this might be expressed as therequirement that in drawing the boundaries of the criminal law we have also totake into account the way in which the law itself draws those boundaries -

turning the question back onto itself so that we ask not only about the scope ofcriminal jurisdiction but also about its nature. We could thus conclude that thetransformation in the scale and character of the criminal law was accompanied bya decisive shift in

legal rationalityor the order of law that has made the

understanding of the modern law possible. On the other hand, we also providedourselves with a central illustration of the way in which that method might workin practice. In tracing the history of the attempts to define the object of criminallaw, we were brought to the consideration ofthe changing forms of legal practice,the circumstances under which the definitions were formulated, the deficienciesfrom which they suffer, and thence towards a critical understanding of themodem criminal law. This was achieved not by abandoning the important workthat has been done in this area but by engaging with it and building on itsdemonstration of the inherent instability of the modem definition of crime in theface of diverse practices of the modem criminal law.There is one more point we need to make, finishing as we began with the

criminal-law textbook. Our starting point was to ask why this question ofdefinition is dealt with at all, whether it is really necessary. The answer clearly isthat it is. These chapters contain the self-definition of the criminal law and,looked at carefully, reveal much about the law. The repetition of circularityreveals the formal closure attempted by legal institutions and marks out the space



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practice or even criminal-justice policy. It overlooks the fact that the definition ofcrime for the

criminologistand the criminal

lawyeris

notnecessarilythe same.

9. For a comment on the extent that this is based onAustins jurisprudence see Kenny(1902:13-15)andPollock (1959).

10. Williamss (1950:123) footnote 3 for the full definition. Williams could be said to befollowing the path taken earlier by Hart in his famous paper on Definition andTheory in Jurisprudence (1953/1983). It is noteworthy thatWilliams is closer to thestrand in Harts thought that was based on the ordinary legal usage rather than theordinary usage perse. For a discussion of these two strands see Simmonds (1993).

11. See for example the programmatic statement in Austin, 1885: especially at1073-74.

12. See Kenny (1902:17) In recent years the question as to the dividing line between

civil and criminal proceedingshas assumed

great practical importance, and hasoccupied the attention of the courts with unusual frequency.13. Kenny (1902:18-19) andAllen (1931) note a number of other situations when the

question of jurisdiction was raised, e.g.,Appeals of Felony where the civil courtwas competent to inflict a capital punishment. This was only abolished in 1819.There was also the question of whether offenders could be a competent witness intheir own defence. This was not permitted in criminal trials until the passing of theCriminal EvidenceAct 1898 which meant that the courts often had to considerwhether proceedings were civil or criminal on these grounds.

14. For the principal cases on summary offences see Williams (1955:112). For casesarising from the JudicatureAct 1873 seeAllen (1931: 230).

15. See the very interesting comments inAnon (1858: 277-8).16. Summary Procedure (S.)Act 1864 28. See also Robt. & Alex. Gray 1820 Hume1844: ii, 74 fn.

17. Cf. Feeley and Simon (1994) who identify a similar trend in the criminal law, butargue that it has only emerged in the postwar period.

18. Although the fact that this is now talked about in terms of community can also beviewed as an attempt to displace the paradox or circularity of the law. See Luhmann(1988); Teubner (1989).

19. Cf. Goodrich (1993: 387-88), who argues that the reasonable man offers a versionof subjectivity.

20. I would argue that even those such as Lord Devlin (1965) who are normallyregarded as defenders of the linkage between law and morality recognize theseparation of law and morals in modern law. He in no sense argues that there is anecessary link between law and morality, only that it is desirable for thecommunity. Devlin, I suggest, can most profitably be read as offering a sensitivedefence of the common-law tradition in the modem world.

21. It also follows from this, of course, that other distinctions internal to the criminallaw, such as the idea that there is a core of more serious crimes, or that of thedistinction between law and context, should also be analysed.

22. See Williams (1955: fn 10).

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Williams, The Definition of a Crime, 8 Current Legal Problems (1955) p107

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