In this paper I am specifically concerned with a normative assessment, from the perspective of a principled criminal law theory, of norms criminalizing illegal immigration. The overarching question I will dwell on is one specifically regarding the way of using criminal law which is implied in the enactment of such kinds of norms. My thesis will essentially be that it constitutes a veritable abuse of criminal law. In two senses at least: first, in the sense that by criminalizing illegal immigration (...) criminal law puts a ban on (certain categories of) persons, rather than on their actions/omissions, in a way in which a principled criminal law should not do; and—second—in the sense that the criminalization of illegal immigrants represents a perversion of the criminal law, being a case in which criminal norms are (unjustifiably) used as means to attain extrapenal aims. (shrink)

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically (...) late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence. (shrink)

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain (...) aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance. (shrink)

Much commentary indicates that, starting from the 19th century, the home has become the privileged site of private life. In doing so it has established an increasingly rigid separation between the private and public spheres. This article does not disagree with this basic conviction. But we argue that, in more recent times, there has been a further development, in that the private life of the home has been carried into the public sphere--what we call "the domestication of public space." This (...) has led to a further attenuation of public life, especially as regards sociability. It has also increased the perception that what is required is a better "balance" between public and private. We argue that this misconstrues the nature of the relation of public to private in those periods that attained the greatest degree of sociability, and that not "balance" but "reciprocity" is the desired condition. (shrink)

This article takes issue with Zygmunt Bauman’s thesis that physical exclusion depends on the hindrance of cognitive associations, emotional quandaries, and moral inhibitions, hence victims and their lot remain out of sight. It is counterargued that conscious engagement in directly physical forms of exclusionary behaviour is possible insofar as victims are known in ways that provoke emotional disdain and moralise violence. Such knowledge consists in the relegation of others to the status of morally lesser human beings, and is produced via (...) prior symbolic mediations. To the extent that mediations operate according to the power differentials they both reflect and help to sustain, there is a need to shift analytical attention from exclusion to the ‘meta-category’ of domination. (shrink)

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the authors (...) argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. (shrink)

This paper explores the visual construction and representation of co-accused women offenders in court drawings. It utilises three case studies of female co-defendants who appeared in the England and Wales court system between 2003 and 2013. In doing so this paper falls into three parts. The first part considers the emergence of the sub-discipline, visual criminology and examines what is known about the visual representation of female offenders. The second part presents the findings of an empirical investigation, which involved engaging (...) in a critical, reflexive visual analysis of a selection of court drawings of three female co-offenders. The third part discusses the ways in which the court artists' interpretation, the conventions of court sketching, and motifs of female offenders as secondary actors, drew on existing myths and prejudices by representing the women as listening, remorseless ‘others’. (shrink)

This article reflects on the international reception of my book Prisons of Poverty as revelator of penal developments in advanced societies over the past decade. I show that the global firestorm of law and order inspired by the United States that the book detected in 1999 has continued to rage far and wide. Indeed, it has extended from First- to Second-World countries and has altered punishment politics and policies around the globe in ways that no one foresaw and would have (...) thought possible two decades ago. I extend the analysis of the role of think tanks (especially the Manhattan Institute) in the diffusion of US-style crime-fighting notions and nostrums in Latin America as one element of the international circulation of pro-market policy packages fostering the punitive management of poverty. I elaborate and revise the original model of the link between neoliberalism and punitive penality, leading to the analysis of state-crafting in the age of social insecurity developed in my book Punishing the Poor. (shrink)

While many connections can be drawn with some confidence between neoliberalism and penal policy and practice, it is difficult to support Loïc Wacquant’s attempt to render punitive penality integral to neoliberalism, and to regard both as being strategically exported from the US. Neoliberalism is a fluid and variable political formation, both over time and internationally, and is impossible to reduce to a few primary characteristics such as a specific penal policy. Correspondingly, neoliberal doctrines and regimes appear to be consistent with (...) many forms of penal policy other than punitive imprisonment. This is partly because of neoliberalism’s own variability, but also because of the impact of local conditions and the multiple ways through which penal policy may be linked with particular political formations. Not only theoretically but also politically, Wacquant’s thesis remains of questionable strategic utility although evidently valuable in consciousness raising. (shrink)

This article will examine the emergence of a distinct bourgeois identity in modernity which differentiated itself from comparable social groups through its desire to exert 'virtuous' control through engagement with reform and philanthropy, and through the symbolic construction of a transgressive, socially marginal but redeemable other as subject of this reform. The ontological insecurities of late modernity had a profound impact on the sources of bourgeois identity, and this article will explore the emergence of the cultural omnivore as a new (...) form of social distinction which is no longer virtuous, but is still a manifestation of the desire to express identity through demonstrating control. It will outline the impact of the emerging omnivore on relationships between the bourgeois self and the marginal/deviant other, particularly in terms of the extent to which the reconceptualisation of 'other' as cultural univore exacerbates the exclusion and criminalisation of the marginalized other. (shrink)

La comparación entre los sistemas políticos, objetivos de guerra, tipo de ejército, técnica militar y economía de guerra de las llamadas viejas guerras y de las nuevas guerras nos revela un continuum y una articulación de las causas de la violencia y de las guerras, que, a su vez, tienen manifestaciones cada vez más locales. Y subraya también la necesidad de repensar categorías y adaptar conceptos. De hecho, los contextos de paz formal en que emergían las viejas guerras interestatales se (...) transformaron, después del final de la Guerra Fría, en escenarios de un nuevo tipo de conflictividad violenta, a los que se ha llamado «nuevas guerras». Sin embargo, los abordajes tradicionales sobre esas «viejas guerras» invisibilizaron las señales de emergencia de los nuevos tipos de conflictividad, ya que éstos no correspondían a ninguna definición tradicional de guerra. Las características de estas manifestaciones de la violencia han ido desafiando las fronteras entre lo que se define como guerra y lo que se define como paz. Sin embargo, los conceptos o definiciones de conflicto y de guerra no son inmutables y estáticos, son conceptos dinámicos y deben tener capacidad de adaptación a las nuevas realidades. Nuestra propuesta es precisamente que hoy día, hay espacios de indefinición o «sin nombre», normalmente entendidos como contextos de paz formal, pero que pueden contener indicios del surgimiento de nuevísimos tipos de conflictividad, cuestionando y poniendo en duda las distinciones estanques y herméticas entre escenarios de paz formal, guerra y posguerra. Comparing the political systems, war objectives, type of army, military technique and war economics of the so-called new wars reveals a continuum and a connection of the causes for violence and wars which, in turn, present increasingly local signs. It also stresses the need for rethinking categories and adapting concepts. In fact, after the end of the Cold War, the contexts of formal peace in which the old wars between states broke out were transformed into scenes that showed new types of violent conflict, which were to be called “new wars”. However, the traditional approaches towards the “old wars” made the emergency signs of these new types of conflict invisible, since these did not match any traditional definition of war. The characteristics of these acts of violence have progressively challenged the dividing line between what is defined as war and what is defined as peace. However, the concepts or definitions of conflict and war are not immutable and static but dynamic, and must be able to adapt to new realities. Our proposal is precisely that today there are illdefined or “nameless” spaces that are usually understood as being contexts of formal peace, but that can include signs of emergence of very new types of conflictive situations. This fact questions and casts doubt on the watertight distinctions between settings of formal peace, war and postwar. (shrink)