Social & Legal Studies

http://sls.sagepub.com The Obsession With Definition: the Nature of Crime and Critical Legal Theory
Lindsay Farmer Social Legal Studies 1996; 5; 57 DOI: 10.1177/096466399600500104 The online version of this article can be found at: http://sls.sagepub.com

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THE OBSESSION WITH DEFINITION: THE NATURE OF CRIME AND CRITICAL LEGAL THEORY
LINDSAY FARMER
Birkbeck

College, University of London

It is

now

rather unfashionable

to

begin law books with

definitions.

(Smith

and

Hogan, 1992:17)
HE CRIMINAL-LAW TEXTBOOK embodies the supreme positivism of the law. The moral, political and social dimensions of the law are tantalizingly raised and dismissed in a single movement in favour of grinding technical discussions of legal minutiae. Entire chapters and many hundreds 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 criminal law is supposed to be to students. It alone is said to capture the rich tapestry of human life - though our experience in the classroom suggests otherwise. The standard opening chapter illustrates perfectly this uneasy relationship between the criminal law and what, for want of a better term, might be called its moral and social context. It is, invariably, on the definition of crime - seeking to define the scope 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, few seem capable of resisting. No amount of tinkering with the order and style of presentation can alter the fact that the authors of the average criminal-law textbook are, and are perhaps destined to remain, deeply unfashionable.

57-

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58

The safe path through the difficult opening chapter is now well established. It be acknowledged that general issues are raised, but at the same time some explanation must be offered for their absence from the rest of the text. The argument normally contains some or all of the following distinctions: it is pointed out that there is nothing intrinsically criminal about certain actions and that the same action may have consequences in both civil and criminal law; a crime may be, but is not necessarily, a moral wrong and vice versa. This may be put in some limited historical context by reference to the changing relation between crime and sin, as represented in the distinction between mala in se and mala probibita. This is brought into the criminal law by reference to the distinction between felony and misdemeanour, although it is pointed out that this has little currency in the modem law.3 We may then try out the definition of a crime as a public wrong, harming state or community, but this too is found to be inadequate or inaccurate. The discussion will normally be brought to an uneasy conclusion with a definition of the following type:
must
an act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. (Williams, 1955:130)

A crime is

wonderfully circular definition, the criminal law may then that branch of the law which deals with those acts, attempts be defined as, safely and omissions of which the state may take cognisance by prosecution in the criminal courts (Gordon, 1978:15) - a definition so circular that it makes you dizzy to think about it! Still reeling, we are moved swiftly on into safer discussions of the positive rules of criminal law. And that is it. This difficult brush with context having been safely negotiated, we are never to return to these complex 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 inertia nor to be excluded 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 apparently trite, formulaic and unsatisfactory conclusion? What is its significance that it must be included? This is the mystery that must be solved. My argunient addresses these questions, but it is worth pointing out that there is a deeper concern - the question of critical method. I want to ask the question of why critical approaches should have responded so inadequately to the challenges of developing a radical approach to the criminal law. In addressing this I have the linked aims of challenging, and attempting to develop, the existing critical method and showing how such a critical methodology might be applied to the criminal law by opening out the analysis of the central question of definition. It seems to me that the failures of critical legal studies stem, at least in part, from a failure to engage with this - hardly surprising, it might be added, since it is not something 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
On the basis of this

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lawyers for quite long enough and does not in any case seem to be the mystery that requires a solution. However, understanding why it was asked and how this bizarre, circular answer should have achieved respectability will, I believe, take us 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 have become the focus of critical attention. Going further, I argue that it is less the question of the content or values of the law that is of central importance than that of the relation between the criminal law and its object. With this in mind, and to come closer to an understanding of what this relation might be, I pursue the idea, for the sake of argument, that the positivist definition of crime is in fact a true one. As a preliminary step, however, it is necessary to review, in a rather schematic form, the approaches currently taken in critical legal theory.

CULPABILITY

AND

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 and develop it. (Lacey et al., 1990:12)

Conventional criminal law theory presents a two-dimensional picture of the law where two sorts of problem are envisaged: first, the attribution of responsibility (culpability); and second, the limits of the law (criminalization).4 Both are treated as being primarily problems of moral philosophy and are normally determined by reference to some version of moral individualism. This is regarded as the
means of establishing both the general conditions under which an individual may render himself or herself liable to punishment (the general form of the law), and the particular types of harm that may be punished (and hence the scope or content of the law) - although there are internal disagreements in the theory as to where these boundaries should be drawn. Critics have been justly impatient with the limitations of this model, and the specious unity that is obtained through this form of moral or juridical individualism. Law is not a wholly rational enterprise, and to view it as such is to flatten out any number of complex issues. It is simply too narrow to see it as a practical application of liberal political philosophy (Farmer, 1992; cf. Fletcher, 1978: xix; Norrie, 1993:12). And yet, perhaps rather surprisingly in view of its ambitions to provide a fundamental critique of modem law, in the area of criminal law critical legal studies has struggled to escape from this twodimensional schema, and provide a truly persuasive critical account of the law. Starting from the assumption that the law could be otherwise, critical arguments have generally followed one of two paths - concentrating either on the question of culpability or that of criminalization5 - that have left them practically

proper

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60

indistinguishable

at

times from

more

conventional

theorizing.

It is

not

by

chance, I would suggest, that the most convincing critical

accounts

of the law

have come in the analyses of particular crimes which have escaped the straitjacket of this rigid distinction between form and content. The first approach can be seen in the work of Alan Norrie, most recently and importantly in his book Crime, Reason and History (1993; cf. 1991). Concentrating almost exclusively on the form of legal responsibility, he argues that the conflict between the abstract form of juridical individualism and the social character of action gives rise to the contradictions inherent in attempts to construct a coherent general theory of criminal liability. The rationality of the law is only apparent or ideological, papering over deeper social contradictions by manipulating the space between abstract form and social context. The criminal law 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 social control peculiar to itself (1993:9). However, there seem to me to be three problems with this approach. The first concerns the significance of contradictions. Norries argument seems to be that the contradictions of legal reasoning derive from the unsuccessful attempts of legal discourse to exclude &dquo;external&dquo; realities, and police the borders of the conviction process ... against contextual raiding parties (1993:223). The abstract and rational legal form is thus corrupted by the continual intrusion of the context in which the law operates. However, this belief in the critical power of context is based on the assumption that the legal form is abstract and rational. Ironically, Norries demonstration of the contradictions and inconsistencies of legal discourse suggests that it is not structured and systematic and, if anything, that the contradictions are internal to the legal form. Far from demonstrating the limits of legal rationality, such contradictions may actually be characteristic of the legal form. It may be more plausible to explore the 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 second

problem.
Norries response to the preceding comments would surely be that the resulting inconsistencies in the law must be understood historically in terms of a tension between legal individualism and social individuality (1993:14-16, and ch. 2). There are deeper social and economic contradictions, and critical method, thus, entails exposing the gap which the law seeks to conceal. Although it is unquestionably valuable to make the point that the individualism of the law is not

natural and given but historically contingent, this claim does not necessarily have any critical force. Of course, and this is the final point, Norries argument is that as an abstraction from social reality the legal form is in some sense both arbitrary and wrong - both at the level of the systematic injustices of legal doctrine and in the 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 does not go far enough. In recognizing the historical contingency of legal categories it looks neither at the contingency of the distinction between form and content nor between the law and its context. Thus, while arguing that the law is structured in

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61
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 is contained. This sets up the critical question in an unduly narrow way, reproducing the rigid distinction that conventional criminal-law doctrine draws between questions of culpability and content and leading to the wasting of much effort on the question of where to draw the boundary between the law and its context. To take up a point made by Lacey, she argues that at times Norrie himself 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 at present it is pulling its critical punches. The second approach adopted by critical legal scholars focuses on criminalization, the process whereby certain actions are made criminal. If we are to identify our subject matter, argue Lacey and colleagues, we must enter upon some broader 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 are criminalized by criminal-justice agencies or look at the way in which certain classes of actions are brought within the scope of the criminal law by being defined as crimes. There is a keenness to demonstrate that the lessons of the sociologists of deviance and radical criminologists have been learned within the law school. Crime is symbolic, amplified, socially constructed, gendered, class-based and so on. However, even as this approach rejects the suggestion that the content of the criminal law could be a solely moral issue concerning the application of the harm principle or whatever, it is simply offering a range of different answers (all of which contain some truth) to the question of the definition of crime. They expand it to include crimes of the powerful. They look at the defining process, for it is clear that crime is defined by legal actors other than judges. Criminal-law courses may now pay the right amount of scholarly attention to criminal justice (Nelken, 1987). Whether criminal law is regarded as the product of policy or power, however, the focus remains on the shifting boundaries of criminalization (Lacey 1995). That is, the emphasis is placed on the way that crimes are defined, forever expanding the context in which the criminal law can be seen to be constructed. What are we to do with all these insights? It may properly be claimed that it is important to understand the contingency of the criminalization of certain individuals or groups, but too often this is allowed to collapse into a weak relativism, the endless demonstration that things might be otherwise. It is inadequate simply to collect everything together and hope that it all makes sense. In this respect this approach might be termed reductivist/ to the extent that it operates with a fairly unspecific sense of law. As the context is brought in, the law is inexorably reduced to that context. Thus, while our knowledge of the criminal process is expanded - along with the curriculum (Alldridge, 1990; Coombs, 1988) - the criminal law comes to be regarded as something that is indistinguishable from other practices of social control. In Laceys words, it is increasingly difficult to be certain where the boundaries between criminal and non-criminal enforcement can be said to lie (1995: 21). This has worked best in analysing the way in which particular crimes have been formulated and enforced over a period of time or in particular

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62

circumstances - though this may in practice turn out to be virtually indistinguishable from more mainstream scholarship (cf. Wells, 1993, with Horder, 1992; Nelken, 1987:152). The problem, once again, is that the contours of conventional 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 must turn in the following sections. I am certainly guilty of having unduly simplified these two approaches, since clearly they have produced a more complex challenge to conventional ways of thinking about the law, as well as stimulating further critical enquiry. Yet a problem remains. If we know that crime is socially defined and that it would be deeply unfashionable not to study law in its context (whatever that means), we have not yet been brought closer to an understanding of the criminal law as a whole. A properly critical approach must move beyond this narrow focus on the separate elements of culpability and criminalization and look at how this distinction is actually instituted from within the law. We have concentrated too long on the demonstration of something that seems to be acknowledged by the criminal law - that the content and categories of the law are contingent. Let us return, then, to the original question of the definition of crime.
THE DEFINITION
I learn that
some

OF

CRIME

1, in its attempt to define the nature of so, I advise to postpone its perusal until after they have read the rest of the volume. Definitions belong, indeed, rather to the end of our knowledge than to the beginning of it. (Kenny, 1918: Preface)

Crime, exceptionally difficult. Those who do

beginners find Chapter

Attempts to provide a definition of crime certainly do appear to be obscure and unsatisfactory or, in the words of one commentator, sterile and useless (Fitzgerald, 1960: 257). It is nonetheless instructive to review these attempts, the majority of which appeared between the beginning of this century and the late 1950s, 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 were under the supervision of the original author. The first chapter, The Nature of a
Crime, 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 regarded as a splendid model of legal presentation, clear, eloquent, and in the highest degree instructive (Kenny, 1952: 547). It is a remarkable piece, differentiating as it does between no less than eight potential
definitions of crime.
It begins by looking to see whether there is something about the act itself which renders it distinctive. The first definition is thus based on Blackstones statement that a crime or misdemeanour is an act committed, or omitted, in violation of a public law, either forbidding or commanding it (1765: iv, 5). The

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63
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 be

adequate as rough general descriptions, but insufficient to constitute a precise formal definition holding true for all crimes. Accordingly Kenny moves on to the third which is that crimes are those legal wrongs which violently offend our moral feelings (cf. Allen, 1931:233-6). This also is held to break down in practice. At this point the quest for a quality that is intrinsic to the act is abandoned in favour of extrinsic features. Fourth up, then, is a consideration of the respective degrees of activity manifested by the state in criminal and civil proceedings, and fifth that the proceedings take place in different tribunals. Both are considered to fail because of the existence of certain proceedings on the borderline between civil and criminal, where the function of the state could be carried out by private parties for their own benefit. Sixth, the possibility that punishment 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 civil proceedings could at times be brought with a punitive aim. The seventh possibility, barely considered, is that of a difference in the nature of the sanctions themselves. The crucial difference is then sought in the respective degrees of control exercised over the proceedings by the sovereign, and particularly in the matter of their termination and the exercise of the royal prerogative.&dquo; Thus the eighth and final definition: [A] crime is a wrong whose sanction is remissible by the 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 stems from the fact that the scope of pardon could only be determined by asking which sentences were of a punitive character, thereby throwing the enquirer back onto one of the previously rejected definitions (number 6). The alternative was plainly circular, an outcome which Kenny had clearly wished to avoid: a pardon only applies to crime, therefore crimes are those actions that can be pardoned. In another sense the definition is plainly absurd, since it would have to follow that if the royal prerogative were to be abolished, this would logically entail the abolition 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 by Glanville Williams in 1955 which, as is the case with much of his work, has had a crucial impact on subsequent understandings and definitions of the law - and in particular in shaping the formulaic expressions described in the introduction. Williams acknowledges the intractable nature of the question: The definition of crime has come to be regarded as one of the thorny intellectual problems of the law (Williams, 1955:107). However, he boldly cuts the Gordian knot by the simple expedient of limiting his task to that of framing a definition of crime that will state the legal use of the word (1955:109). As a result certain definitions can be immediately discounted. He follows Kenny in rejecting the possibility that there is some quality intrinsic to the criminal act, dismissing in passing the efforts of C. K. Allen and Jerome Hall to re-establish some moral or public basis for the
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64

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 legal phenomenon of crime has no reality beyond that created by the working of criminal justice (1955: 123). 10 The strength of this definition is seen to rest on the fact that it is supported by authority, reproducing the traditional legal distinction in the realms of jurisdiction, procedure and sanctions. It is notable also that the end result is similar to Kenny, although it is both wider, in the sense that it relies on the whole of criminal procedure rather than a small and rather anomalous element, and narrower, in that by circumscribing the task of definition the ambition of providing a definition that will hold good for all legal systems at all times is abandoned. So, in this way the purely legal definition 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 the retrieval of certain long-forgotten writings on the criminal law. The (selfproclaimed) value of Williams is seen in the definitions practical assistance to lawyers (Fitzgerald 1960: 260-1; Williams,1955:107) - and it is by expanding on this apparently unpromising insight that I want to argue for its significance. To do So, it is necessary to understand something of the circumstances within which the pursuit of a definition took place. There are two possible contexts in which the obsession with definition may appear to be rather less obscure. First, it clearly makes sense as an episode in the history of Austinian, or analytical, jurisprudence,&dquo; although I do not go specifically into this at this point, since I want to argue 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.). Thus the second context is that of a series of English and Scottish cases in the nineteenth and early twentieth centuries in which the question of the distinction between 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 legal systems is a distinction between civil and criminal jurisdiction. Generally, it is considered that these lines were drawn relatively early in the history of the law, as certain delicts, or private wrongs, came to be regarded as wrongs against the state. These nineteenth-century cases suggest, however, that not only were these questions of jurisdiction far from being settled but also that to characterize the modem 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 being created by statutes such as the Police Acts. These created offences to which the only penalty attached was a fine, thus raising the question of whether the penalty was criminal.3 Later, similar questions arose under 47 of the Judicature Act 1873, which states that there was no appeal to. the newly created Court of Appeal from criminal proceedings.&dquo; Although the answer to these problems was sought in a reference to the nature of the offence, they could not be resolved by means of the traditional categorization of crimes as public wrongs. Accurate as it might once have been as a means of distinguishing

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65

between civil and criminal jurisdiction, it could no longer bear the load that was being placed on it15 since the issues raised by these cases largely involved minor offences arising from particular regulatory provisions with no apparent reference to larger questions of moral right and wrong. The line taken by both English and Scottish courts was thus that proper criminal offences could only be distinguished by reference to the practice of the criminal courts, and in particular the 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, I find it nonetheless revealing. The clarification of the division between public and private right was sought in neither moral nor political categories but through a characterization of the proceedings. One of the principal Scottish procedural statutes states that the determining factor was not to be the nature of the offence but 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, the specification of criminal proceedings. This finds its clearest expression in the emergence 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 numbers of people, or the regulation of the administrative distribution of bodies within the criminal justice system. This demand was met by the development, among other things, of a more rigorous and systematic body of procedural law. Under this new body of law, jurisdiction was not defined primarily in terms of competence relating to a geographical space, the nature of the crime or the power of the particular court to punish - as had traditionally been the case. Instead the decisive factor was the type of procedure used. To be sure, this approach does not escape circularity - indeed, it positively celebrates it but it roots the solution to the problem 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 jurisdiction is founded in procedural law, and that the mark of the modernity of the law is less a matter of the division between civil and criminal jurisdiction than it is the emergence of this new reliance on procedural law. This underlines a more general transformation in the legal order that occurred in the course of the nineteenth century (Foucault, 1991; Murphy, 1991).&dquo; As the political order was secured against the threat of external domination and internal revolution, there was a movement towards the more intensive regulation or government of territory and the population of that territory. Criminal justice became a matter of administration and security, increasingly less concerned with the establishment and protection of sovereign power. So, as the substantive jurisdiction of the criminal law changed, with the increasing predominance of administrative or police offences, there was a subtle change in the way that the object of the criminal law was conceived (in relation to social order). There is, as I have noted, a movement away from regarding crimes as actions that offend against the community or justice, as this had been constructed through the mirror of political order (public wrong). Crimes instead come to be seen as actions that offend the community in its social interest or welfare, which is the
-

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66

aggregate of individual interests as this is known through the new social knowledges. That criminal law can then be defined only according to the positive criterion of whether an act is tried under criminal proceedings simply reflects the diversity of functions of law in the interventionist state. There is no single, simple moral or other purpose that is capable of holding the whole together. It cannot be that 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 reflect the same tautology (i.e. what harms the community - a crime) dressed up as moral or political theory.&dquo; The specifically legal character of modem criminal justice 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 could not be further from the case. He is not the ideal legal subject but the means by which the object of legal regulation is conjured up. He stands as the device whereby the social interest of the community can be represented in law, the representative of the community, whose individual interests can be made to stand for the whole as the ideal representative of average interests. The concern with reasonableness is a feature of the modern law alone, and it is consequently a 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 known and calculated - subjectified - through reason. It is the means by which the diverse interests of the modern law and the imagined community can be connected, a transformation in the measurement of objectivity. Through this device judges labour to connect the operation of the law to community feelings or community interests. The difficulty that legal theory must face is that just as crimes are no longer public wrongs, so too the criminal law has lost any connection that it might once have had with community. Criminal justice is not the expression of community values. Guilt, punishment and harm have become legal and administrative categories. In the concluding section I want to argue that we can only give due weight to these considerations by taking up this question of the definition of crime. It stands both as a key to an understanding of the emergence and character of the modem law and as a means by which the contingency of the modem law is managed. We can no longer look at this question, then, in the narrow sense of the substantive content of the criminal law but have the wider task of developing a theory of criminal jurisdiction.

CONCLUSION: CRIMINAL JURISDICTION

The law relating to crimes and punishments forms what is termed in every country the criminal code; though if it only does that which is right, it seems unjust to call it criminal. (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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67

remarked upon, feature of nineteenth-century (and contemporary) jurisprudence actually tells something about how the law is, reflecting an important change in the nature of legal practice. To put this in its strongest form, it is to claim that it is actually a condition of the operation or function of the modem law in the diverse forms that it takes. It is not simply an ideological practice, the attempt to produce the appearance of neutrality as the corollary of an ever-deepening social intervention (Norrie, 1933: chs 1-2); though, equally, that is not to exclude the possibility that the law is not also ideological. By the same token, it cannot be regarded as being the sole product of late eighteenth-century utilitarianism (Williams, 1955). Legal positivism is classically recognized in the theoretical cleavage between legal and moral values,2 between posited and natural law - although it is also clearly visible in the distinction between legal form and content, the belief that valid law may have any content. As we have seen this theoretical transformation has its counterpart in institutional and social practice. The truth is that the positivism of the law reflects something of the awkward reality of the modern criminal justice system, and this is something that should be taken much more seriously. It follows from this, as critical theorists recognize, that if the law is contingent, because it is posited, it is necessary to look at how this is managed at the level of legal theory. The first important difference that 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 of procedure, follows from this. It should by now be abundantly clear, reinforcing the claim that was made earlier, that the modem criminal law accepts, and is predicated upon, the idea of contingency. Williamss definition of crime makes this explicit, in its argument that there is no object outside the process that defines it (1955:107). It is thus a decidedly weak critical strategy to indulge in the rediscovery of the contingency of the law. More importantly, the central importance of procedure in defining, regulating and administering within the modem legal system has been crucially underestimated. Attention to the positivist definition of crime directs us towards this rather important truth. Rather than looking at the object of definition, we should look at the relations between that object and the defining process. However, it is important to underline what this is not! One obvious response to this claim is to point out that the study of the process of the law is precisely the type of contextual study of criminal law and justice that is being undertaken anyway. Indeed, it might be added, this is to do no more than is suggested by the Williams definition anyway - trying to reclaim the definition for criminologists and philosophers !~~ This seems to direct us towards the study of 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 and criminal justice, so beautifully and comprehensively documented by Nelken (1987). Why should it be that in spite of our ever-expanding knowledge of the criminal justice process we should still fail to gain any critical purchase on the criminal law? There are two distinct questions here and there is a tendency to

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though they were identical. The one is the question of the particular and uses of the criminal law (or definitions of the law) at any particular point in time. The other is what might be termed the second order question of how the problem of definition is solved by the legal system-what I term the problem of criminal jurisdiction. The reason for the disjuncture is that the definition must act, more or less successfully to stabilize the legal system against such competing definitions, instituting the distinctions that prevent the reduction of the legal institution to something outside of the law. To focus on this latter question is not to argue that we ignore the former - how the law is used and who is criminalized and so on. Far from it, for it is only through such understandings that we can attempt to destabilize the definition. However, it is to place the problem of definition at the heart of the critical relationship between theory and practice. We cannot begin to challenge the particular definitions until we begin to understand why and how they 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 that although the content of the law (or its practices) may be contingent in a historical sense, this is not true in the same way of the defining process. Thus, while it is true to argue that things could be otherwise, it does not necessarily mean that things can be otherwise at a particular point in time. To put this in another way, it is to argue that there are limits to the openness of legal discourse. An important point about the definitions of crime is not that they do away with diversity, but that they must be read as a powerful attempt to impose order on the unruly practices of the legal system. Clearly, Williams does not solve the problem of definition - the procedures and sanctions are diverse and do not of themselves impose unity on the criminal law (Lacey,1995 :16-21 ). Yet it is this factor that may be said to have given rise to the circularity of the definition in the first place. It is precisely because of the recognition of diversity that it takes the form that it does! The generality of the definition provides the means of coping with this diversity. Contingency has become the necessity of law, and the tradition of law can be understood precisely as a way of managing this contingency. The critical question is therefore that of our orientation towards the way that the legal system selects between the various alternatives (Luhmann, 1988). All of the preceding argument can be put in a more positive fashion if we begin to describe the task for critical legal theory as that of constructing a theory of criminal jurisdiction. This requires a tracing or mapping of the actual changes in criminal jurisdiction over time, in the widest possible sense. We must see the law as a network of practices - whether it be that of enforcing the law or the practice of producing 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 theoretical boundaries. This requires looking at the types of behaviour that are censured, the types of punishment and the relationship between the two: who is subject to the law and under what circumstances; the apparatus that is capable of enforcing and adjudicating on the law; the boundaries of the permissible and also the boundaries and internal ordering of the legal system; and the way in which institutions and powers are distributed over a legal space. At the same time it is more than this. We
treat them as

content

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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 is not only the issue of how the law sustains its own identity in the face of competing discourses and practices. It requires also that we look at the laws reflexive account of itself; the providing of an account of the law that is authoritative and renders these practices intelligible. This goes beyond the conceptual structure or form of the law, both because in making the other practices intelligible it also includes them and because it must be an account of legal authority - in the narrow sense of precedent and in the broader one of the establishing of an authoritative account of the origins and operation of the legal system. In doing this it is important not to reify these boundaries of the law in the way that traditional criminal law theory has done. Rather, by concentrating on practices in this way we can try to get some purchase on the question of how the object 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 the conditions 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 this process of reconstruction that I have been through with the question of the definition of crime. The centrality of this issue should now be clear. On the one hand this is because in looking at this we have found a way of critically examining the way in which the object of the criminal law is constructed. Challenging the banalities of the conventional formulations, we were led to ask how the relation between law and its object was constructed, thereby raising the issue of critical method. In its most simple formulation, this might be expressed as the requirement that in drawing the boundaries of the criminal law we have also to take 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 of criminal jurisdiction but also about its nature. We could thus conclude that the transformation in the scale and character of the criminal law was accompanied by a decisive shift in legal rationality or the order of law that has made the understanding of the modern law possible. On the other hand, we also provided ourselves with a central illustration of the way in which that method might work in practice. In tracing the history of the attempts to define the object of criminal law, we were brought to the consideration of the changing forms of legal practice, the circumstances under which the definitions were formulated, the deficiencies from which they suffer, and thence towards a critical understanding of the modem criminal law. This was achieved not by abandoning the important work that has been done in this area but by engaging with it and building on its demonstration of the inherent instability of the modem definition of crime in the face 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 of definition is dealt with at all, whether it is really necessary. The answer clearly is that it is. These chapters contain the self-definition of the criminal law and, looked at carefully, reveal much about the law. The repetition of circularity reveals the formal closure attempted by legal institutions and marks out the space
must

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within which the theory of the criminal law can be constructed. For this reason, I suggested at the beginning that the discussion concerned more than an issue of intellectual fashion. Above all, it indicates also the faltering imagination and stilted theoretical language of the discipline. To conclude, then, there can be no question of walking away from the obsession with definition - however unjust (or comic) it might be. We can ill afford to ignore what is said about this in the textbooks, though as the critical method outlined here has stressed, we need hardly reproduce the structure of the arguments. Frustrating and pedantic as the opening chapters of criminal-law textbooks are, we would do well to be attentive to what they can tell us about the law.

NOTES
This article was first presented at a University of Kent Staff Seminar and later at the University of London Legal Theory Seminar. Thanks to the participants and in particular to Bernard Ryan for advice on the title (unheeded) and on sharpening the argument. I would also like to thank Niki Lacey, Alan Norrie, Peter Rush, Matthew Weait and Beverley Brown for their invaluable (and not at all reductive) help and encouragement. I owe a particular debt to Sean Smith who, as ever, commented incisively and instructively on earlier drafts.
1. 2.

They accordingly discuss definitions in chapter 2!

See among many others Smith & Hogan (1992: ch. 2); Gordon (1978: ch.1); Card (1992: chs 1 and 3); and Turner (1964: ch. 1) is interesting in its concentration on the process of indictment. Perhaps more surprisingly see Lacey et al. (1990: ch. 1). The classic formulation is to be found in Kenny (1902: ch. 1). However, this is used to suggest that the heart of the common law is to be found in the original felonies, implying a certain timeless quality to the law. See especially Ashworth (1991: chs 1 and 2, esp. at p. 38) where these two axes are represented diagrammatically. These loosely correspond, of course, to the division between the general and the special parts of the law. This point is all but conceded by Norrie (1993: Preface) when he suggests that his book may be a companion volume to Lacey et al., 1990, where the one concentrates on form (culpability) and the other on content (criminalization). Neither approach may tell the whole story, but is it the right story to tell? The limitations of immanent critique (see also Lacey et al., 1990: 24) as a critical method may stem precisely from the fact that the law lays claim not to be rational but to have an immanent rationality that is always in the process of being worked out. Thus, while as a critical method it may be used to present a mirror image of the law, it fails to address the question of what the law is or does. See, e.g., the approach of Lacey et al. (1990) where a multitude of practices of social control that are analogous to the criminal law are discussed. In fact the desire to set the criminal law in its social context is older, and less radical, than many of us ever imagine. The doyen of black letter approaches, Courtney Stanhope Kenny, declares his intention to draw on wider sources than the decided cases in the preface to his first edition (1902). Turners introduction to the 16th edition (1952) praises Kenny for seeing the connexion between criminal law and all the social sciences more clearly than any legal writer before him had done. Just as important is to ignore the historical fact that these were largely movements within the sociology of deviance and had little or no impact on the criminal law in

3.
4.

5.

6.

7.

8.

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9. 10.

practice or even criminal-justice policy. It overlooks the fact that the definition of crime for the criminologist and the criminal lawyer is notnecessarily the same. For a comment on the extent that this is based on Austins jurisprudence see Kenny
(1902:13-15) and Pollock (1959). Williamss (1950:123) footnote 3 for the full definition. Williams could be said to be following the path taken earlier by Hart in his famous paper on Definition and Theory in Jurisprudence (1953/1983). It is noteworthy that Williams is closer to the strand in Harts thought that was based on the ordinary legal usage rather than the ordinary usage perse. For a discussion of these two strands see Simmonds (1993). See for example the programmatic statement in Austin, 1885: especially at
1073-74. See Kenny (1902:17) In recent years the question as to the dividing line between civil and criminal proceedings has assumed great practical importance, and has occupied the attention of the courts with unusual frequency. Kenny (1902:18-19) and Allen (1931) note a number of other situations when the question of jurisdiction was raised, e.g., Appeals of Felony where the civil court was 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 in their own defence. This was not permitted in criminal trials until the passing of the Criminal Evidence Act 1898 which meant that the courts often had to consider whether proceedings were civil or criminal on these grounds. For the principal cases on summary offences see Williams (1955:112). For cases arising from the Judicature Act 1873 see Allen (1931: 230). See the very interesting comments in Anon (1858: 277-8). Summary Procedure (S.) Act 1864 §28. See also Robt. & Alex. Gray 1820 Hume 1844: ii, 74 fn. Cf. Feeley and Simon (1994) who identify a similar trend in the criminal law, but argue that it has only emerged in the postwar period. Although the fact that this is now talked about in terms of community can also be viewed as an attempt to displace the paradox or circularity of the law. See Luhmann (1988); Teubner (1989). Cf. Goodrich (1993: 387-88), who argues that the reasonable man offers a version

11.

12.

13.

14.
15. 16. 17.

18.

19.

20.

21.

22.

of subjectivity. I would argue that even those such as Lord Devlin (1965) who are normally regarded as defenders of the linkage between law and morality recognize the separation of law and morals in modern law. He in no sense argues that there is a necessary link between law and morality, only that it is desirable for the community. Devlin, I suggest, can most profitably be read as offering a sensitive defence of the common-law tradition in the modem world. It also follows from this, of course, that other distinctions internal to the criminal law, such as the idea that there is a core of more serious crimes, or that of the distinction between law and context, should also be analysed. See Williams (1955: fn 10). REFERENCES

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