Wickedness and Crime

Laws of Homicide and Malice

Penny Crofts

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136703126
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire sociale

The criminal legal system defines and authoritatively enacts the boundaries of permissible and impermissible behaviour, with a focus on that which is prohibited or transgressive. Wickedness and Crime: Laws of Homicide and Malice seeks to expose the ways in which criminal law communicates and sanctions particular models of wickedness. This book illuminates the intimate relationship of crime and definitions of wrongdoing. A central contention of the book is that if a criminal legal system empty of normative content is undesirable and implausible, then we must think critically about the types of models of wickedness that are communicated by criminal legal doctrine.

Through historical and contemporary analysis of the legal concept of malice, Penny Crofts examines the types of models of wickedness that are established through criminal legal doctrine. The book draws upon literature, philosophy and jurisprudence to place wickedness at the centre of an account of criminal law. Arguing that the current dominant idea of wickedness communicated in criminal law lacks nuance and clarity, this book examines the implications in terms of the legal subject, social responsibility and the jurisdiction of the legal system. Through historical accounts of malice the book provides resources to enrich a contemporary jurisprudence of blaming.

A fascinating contribution to the study of law, this book will interest criminal legal scholars who seek a deeper understanding of the complexity of the relationship between law and morality. The book also provides a resource for legal theorists and philosophers of wickedness, supplying a sustained example and analysis of the implications of types of models of culpability.

CHAPTER 1

Introduction

Lavender drove a front-end loader at four children to frighten them away from the sand mine at which he worked. Two of the children hid behind some scrub and, not knowing that the children were there, Lavender drove the loader over the top of the scrub, causing the death of Michael Milne. Lavender was charged with manslaughter by criminal negligence. On appeal to the New South Wales Court of Criminal Appeal in 2004, a central question was whether or not Lavender was ‘wickedly’ negligent.¹ The three judges gave three different answers as to what it meant to be wicked and whether or not wickedness was relevant to the criminal law.

Wickedness and Crime was stimulated by the failure of these appellate judges to articulate a coherent and persuasive notion of legal wickedness. Surely a long-term project of the legal system has involved and rested upon the expression of what it means to be bad or wicked? So many of the central narratives and general principles of the legal system revolve around the accurate identification of blameworthiness and thus culpability. The exercise of the power to judge and to punish resides in part on normative claims. Offences where there is a separation of perceived blameworthiness, on the one hand, and conviction and punishment, on the other, are portrayed by theorists and practitioners alike as exceptions and/or a cause of criticism. Given the centrality of these narratives of blameworthiness to the identity, power and authority of the law, why has there been such a lack of nuance, cohesion and resonance in contemporary legal accounts of what it has meant at law to be bad or wicked? Why has badness or wickedness been ignored or simply assumed in the majority of cases and in legal doctrine? Why, when judges have addressed the question of wickedness, has it been dealt with so weakly?

In Lavender, legal assumptions of culpability were stirred up and disrupted by the concept of malice leading to the judicial examination and interrogation of the substance of wickedness. Historically, malice was closely associated with legal constructions of wickedness. In Lavender it triggered questions such as: Was malice (and thus wickedness) a pure legal concept that meant solely what the law said it meant? Did malice (and thus wickedness) require ill-will, some form of intention or knowledge? Or could a person have malice (and be wicked) due to a lack of goodness, a failure to care? The judges made choices about legal stories and histories of malice which shaped and reinforced the different assertions regarding the substance and function of wickedness. Malice was thus a stimulant or irritant of complex questions of culpability and appeared to be a largely untapped and ignored resource. Malice provided a means to give depth and nuance to a jurisprudence of blaming.

The criminal law is primarily concerned with the dark side – that which is bad, wicked and/or undesirable.² This book examines how criminal legal doctrine and jurisprudence organise and express wickedness through the prism of malice by placing malice at the centre of an account of criminal-law jurisprudence. It is intended to restore a language of public morality and a jurisprudence of wrongdoing. What does it mean to be culpable? What kinds of models of wickedness are expounded through the criminal law?

There are two guiding questions. First, what is the substance of malice in different legal materials? In other words, how does criminal legal doctrine define, organise and express malice? What are the continuities and dissonances across time and place? Second, given that legal notions of malice are contingent – that malice does not have an a priori existence – what is the purpose or function of organising malice in a particular way? How does the legal system use malice?

I am not attempting to provide the definition of malice, or to settle on a particular account of wickedness as the correct approach for criminal law, although I do argue in favour of the reinstatement of the classic model of culpability. Rather, I aim to provide a reminder that there are different ways of thinking about culpability in criminal law, and different ways in which legal doctrine organises culpability. My goal is to demonstrate that contemporary notions of culpability lack nuance and depth. We need to be aware of the different ways of thinking about wickedness, to debate the implications of different models, and to consider the ir/relevance of wickedness in and to criminal law. My approach expands the repertoires of jurisprudence: I provide a different way of thinking about the practical reasoning of the law.

This analysis of malice contributes to a jurisprudence of blaming, providing a deeper understanding of the criminal law as a system of blaming, focusing on how the law organises and expresses what it means to be blameworthy through an examination of malice in historical and contemporary legal materials. While many contemporary legal theorists accept that the criminal legal system is a system of blaming, they do not take the next step, which is to consider that blaming involves censure or reproof for fault, wrong, badness or wickedness . Historically, the link between criminal law and morality was explicit and expressed through evaluative terms in offence formulae such as malice, mens rea and wickedness. In contrast, there is now a tendency to think of crime in neutral procedural terms and to avoid reference to its normative elements. Through an analysis of malice, this book reverses this modern tendency and focuses on how the legal system communicates what it means to be at fault, and to be bad, wicked or wrong.

The criminal legal system is one of many social discourses that organises and expresses morality, in particular what it means to be sufficiently bad to be worthy of criminal sanctions. I demonstrate that even ostensibly valueneutral approaches to criminal law convey particular ideas of what it means to be bad or wicked. That is, criminal legal doctrine reflects and reinforces morals and norms, and that the substance and function of this normative aspect of legal doctrine can and should be analysed. I undertake this analysis through the reconstruction of malice in legal materials.

Malice is a well-known subject and object of criminal law. In legal materials, the concept of malice has consistently had a relationship with that which is bad, blameworthy, culpable and/or undesirable. Looking at how malice has been organised and expressed is one way of analysing legal ideas of wickedness. Legal constructions of malice have varied across time, place and offence category. I analyse legal constructions of malice in homicide legal doctrine from the thirteenth century onwards. My reconstruction of malice provides a reminder of the different types of models of wickedness, and accordingly of different conceptual resources upon which the law can draw in constructions of culpability.

This book makes two gestures. The first is reconstructive. In contemporary jurisprudence, malice is disregarded, ignored and trivialised. I reconstruct malice both historically and in contemporary criminal law. This reconstruction also resuscitates the relationship of criminal law with morality. I reconstruct (part of) the substance of what it means to be bad or wicked in jurisprudence. My intervention is thus therapeutic – through care, I restore malice and its history to the law.

The second gesture is critical. A basic premise of this book is that the criminal legal system is a system of blaming. The legitimacy of the criminal legal system is based partly on claims that the law accurately identifies and punishes culpability. Despite this long-term, central project of the criminal legal system, contemporary legal doctrine does not communicate or construct a coherent, persuasive account of what it means to be sufficiently bad or wicked for the purposes of criminal law. I am critical of proposals for a criminal law empty of normative content; therefore, I resuscitate a classic notion, present in older legal materials, of wickedness as an absence of goodness, a lack or dearth. This model is a reminder of the intersection of the individual and the social in constructions of wickedness. On this model, the failure to think about social values may in itself be wicked, and the failure of legal doctrine and jurisprudence to articulate and debate model/s of wickedness is not only irresponsible, but also wicked. My intervention is thus prudential. Not only do I care for malice, but I also highlight the need for care of malice, and how this may assist with judgment and legal materials.

The criminal law as a system of blaming

A basic premise of the book is that the criminal law is a system of blaming, and as such it authoritatively organises and enacts what it means to be bad, wicked or wrong.

The majority of theorists, practitioners and lay-people accept that the criminal legal system is a system of blaming – that is, that the criminal legal system organises and expresses what it means to be culpable, blameworthy or guilty. While, as I argue below, the conjunction between law and morality is regarded as problematic by legal theorists, the disjunction between blameworthiness, on the one hand, and criminal convictions and sanctions, on the other, is regarded as exceptional and as a cause of criticism by members of the judiciary and legal theorists. A major concern of the criminal law is blameworthiness. Is the accused sufficiently blameworthy to justify punishment or sanctions? The prosecution must prove the guilt of the accused, beyond reasonable doubt.³ Blackstone's (1966 [1769]: ch. 27) maxim that ‘the law holds, that it is better that ten guilty persons escape than that one innocent suffer’ is often quoted as a guiding principle of the criminal legal system, suggesting a necessary link between guilt and punishment.⁴ There are strong narratives in judgments about the need to establish the blameworthiness of the accused, and these narratives frequently are linked to the need to establish that an accused had the necessary intention or knowledge.⁵

Legal theorists are in broad agreement that the criminal justice system expresses and organises a system of blaming. This ranges from an implicit assumption providing a broader framework for analysis ⁶ to a focus for analysis.⁷ Theorists such as J. B. White (1978: 27) assert that blaming is central to the criminal justice system enterprise:

Law is a set of social practices the function of which is the making of meaning, a language that defines a community and its members. On this view the criminal law is seen as a form of the special practice we call blaming. Blaming is an activity which, like other important cultural activities, can't be reproduced in the language of systems-design, but it is intelligible to all of us. No tolerable system of criminal law can be imagined without it.⁸

The eminent legal theorist George Fletcher asserts that the reality of judgment, blame and punishment ensures that the criminal law is normative. Fletcher (1978) devoted Rethinking Criminal Law to enunciating ‘patterns of blameworthiness’ in criminal legal doctrine.

However, despite widespread acceptance of the notion of criminal law as a system of blaming, legal theorists are more circumspect about the notion that criminal law organises and expresses wickedness. This contemporary discomfort with the idea of an association between criminal law and wickedness can be explained in various ways, in particular the modern discomfort with the regulation of positive morality. This is represented as a gradual separation across time of law from religion and/or morality. As I argue in Chapter 2, historically religion and law have partaken of each other. The religious worldview was imbricated in, and expressed through, the law. The ecclesiastical jurisdiction has left vestigial marks on criminal law, with many offences – including homicide – that were based on religious rationales now recast as secular offences.⁹

In debates, the relation between law and morality tends to be presented in starkly opposing terms. Either the law regulates morality and the immorality of conduct supplies a sufficient reason for criminalisation,¹⁰ or morality is a private matter that should not be the subject of criminal law unless it harms others.¹¹ Many since have expressed distaste for the influence of some aspects of moral and religious precepts upon law historically and in the present, and a concern that a morally informed criminal law may support enactment of re...

Table of contents

• Cover
• Half Title
• Discourses of Law
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Acknowledgements
• 1 Introduction
• 2 Medieval malice: disorder and purity of heart
• 3 The poisoned apple of malice
• 4 Sir James Fitzjames Stephen and monstrous malice
• 5 The malevolent outlaw of law
• 6 The negligence of Lavender
• 7 Conclusion
• References
• Index