DR HENRIQUE CARVALHO

The Dangerous Essence of Criminal Law
Redefining Criminalisation
EARLY CAREER FELLOW: OCTOBER 2019 – SEPTEMBER 2020

Dr Henrique Carvalho is Associate Professor and co-director of the Criminal Justice Centre at the School of Law, University of Warwick. His research explores the links between criminal law and justice, punishment, and identity, subjectivity and belonging. He is the author of The Preventive Turn in Criminal Law (Oxford University Press, 2017), and is currently writing a co-authored book on the problem of punishment today. Henrique’s ISRF-funded project, ‘The Dangerous Essence of Criminal Law’, advances the proposition that dangerousness lies at the core of the conceptual framework of criminal law, as something essential to what it is, and to what it does. It suggests that the questions of what and who is considered dangerous to society, and why, are the fundamental issues underpinning the entire criminal law, from the general development of criminal offences to the way in which the law is put in practice on the streets, in the courts and by the penal system. To ground this perspective, the study develops a thick conception of dangerousness as an affective socio-political phenomenon inherently linked to a specific notion of civil order. Dangerousness is seen as historically and culturally constructed, emotionally driven, and socially and politically conditioned.

Abstract

This study inaugurates a new field of critical criminal law research. Public perceptions of crime are permeated with the image of dangerous activities and of the dangerous people who perpetrate them: gangsters, terrorists, murderers and sex offenders being the most prominent examples. Likewise, a growing number of criminal offences rely on the dangerous status of their object as basis for criminalisation, from the use of dangerous dogs, weapons and substances to activities such as dangerous driving. Prosecutors also often rely on images of dangerousness to convince juries of the defendants’ guilt and criminal character. However, when it comes to criminal law theory and doctrine, dangerousness becomes mostly invisible, dismissed as a manifestation of emotional appeals to populism in place of the rationalism of the law. In not acknowledging the influence dangerousness has on criminalisation, and how this influence contributes to perpetuating discrimination, marginalisation and miscarriages of justice in society, criminal law scholarship preserves a misconceived idea of itself that has significant practical repercussions.

‘The Dangerous Essence of Criminal Law’ unsettles criminal law scholarship by advancing the original proposition that dangerousness should be placed at the centre of the conceptual framework of criminal law. Through an innovative interdisciplinary methodology, this project advances a thicker conception of dangerousness which is inherently linked to a specific notion of civil order, which the criminal law strives to preserve by defining and then repressing those values, activities and identities that pose a threat to this order. In so doing, this study tackles criminal law scholarship’s failure to come to terms with the real dynamics of criminalisation and uncovers a new vision of the socio-political role of the criminal law, which engages with recent developments in a way that illuminates how processes of criminalisation relate to issues of identity, solidarity, structural violence and social exclusion.

The Research Idea

The thesis of this project is that dangerousness lies at the core of the conceptual framework of criminal law, as something essential to what it is, and to what it does. It suggests that the questions of what and who is considered dangerous to society, and why, are the fundamental issues underpinning the entire criminal law, from the way liability for crime is established to the general development of criminal offences. To ground this perspective, the study develops a thick conception of dangerousness as an affective socio-political phenomenon inherently linked to a specific notion of civil order. Dangerousness is seen as historically and culturally constructed, emotionally driven, and socially and politically conditioned.

There are three elements to this thesis: (1) that dangerousness underpins the main socio-political role of criminal law, that of managing processes of ‘identification’ with and ‘estrangement’ from society’s civil order; (2) that these processes generate ‘hierarchies’ and ‘lexica’ of dangerousness which shape and condition the criminal law, by determining what harms are considered more or less dangerous to society, how these harms can be identified, who can be held responsible for them and what can negate liability; and (3) that these processes, since they are socially embedded, are shaped by structural inequalities and power dynamics, and influenced by specific ‘crises’ and moral panics. The aim is to produce a critical account of 289 289 criminal law that recognises and exposes its hostile and exclusionary aspects, rather than repressing them, so that they can be properly examined and addressed.

Background

Dangerousness is traditionally a narrow and self-contained concept in criminal law scholarship, which has recently gained broader currency within the growing body of work around criminalisation, or more specifically ‘overcriminalization’ (Husak, 2007), especially in relation to the proliferation of preventive measures and offences aimed at reassuring an increasingly anxious public of their security against a variety of threats, from terrorism to sexual violence, anti-social behaviour and, most recently, knife crime (BBC, 2019). Most scholars have interpreted these developments as aberrations which compromise core values of criminal law, such as individual responsibility and the presumption of innocence (see Duff et al 2010, 2011, 2013, 2014; Ashworth and Zedner, 2008, 2014). My own previous work has contributed to a critical strand in this area which examines how this normative presentation of criminal law is in tension with the law’s role as an instrument of social control (see Ramsay, 2012; Farmer, 2016; Lacey, 2016; Norrie, 2014, 2017). I analysed this tension as an ambivalence within criminal law, between responsibility and dangerousness (Carvalho, 2017). This previous analysis has located dangerousness at the heart of what criminal law is, as a political institution. The proposed study will constitute a new stage in this investigation, by focusing primarily on dangerousness and placing it at the heart of what the criminal law does: how it criminalises, who it criminalises, and why, thus directly engaging with the link between criminal law and criminalisation. I am particularly well placed to take on this project, due to my previous experience.

The Focus

A dangerousness-focused approach is better equipped to examine the paradoxes and limitations within criminal law, by deploying a critical perspective which studies its principles, rules and decisions in tandem with their problematic socio-political context and their often-harmful effects, so that these can no longer be ignored by a primarily normative and rationalising focus on the discipline.

The approach in this project is uniquely placed to highlight how the criminal law (1) prioritises certain harms over others, based on constructed assumptions about what poses the greatest danger to society, and how this danger is to be tackled (e.g. how the structure of property offences prioritises street crime over white-collar crime, and why the strong condemnation of sexual offences is met with low levels of prosecution, conviction and punishment); (2) determines who is to be deemed dangerous (e.g. why BAME and socio-economically deprived populations are disproportionately criminalised); and (3) influences our social interactions with one another (e.g. by shaping our reaction to events like the 2011 riots, our attitudes towards specific groups, and our understanding of crime as a legal instead of a social problem). In critically engaging with the hostile, neurotic and structurally violent elements of the criminal law (which have been emphasised by real-world developments and concerns but remain neglected in theoretical and doctrinal scholarship) by examining them not as unwanted consequences of criminal law but as manifestations of one of its building blocks, this project offers a fresh approach to understanding the role of criminal law in society today.

Theoretical Novelty

The idea of re-interpreting the criminal law through a conceptual framework centred on dangerousness is entirely novel. While previous research, including my own previous work, has drawn on broader socio-political issues to investigate the problematic aspects of criminalisation, such scholarship has been predominantly concerned with critiquing and redefining existing understandings of criminal law. By critically reconceptualising a marginal concept in scholarship, and bringing it centre-stage, this project breaks with existing explanatory frameworks.

This conceptual innovation will be developed in three levels, linked to the project’s three methodological stages. The first step is the elaboration of the thicker conception of dangerousness as an affective socio-political phenomenon inherently linked to ideas of social order, and to how these ideas shape and condition legal subjectivities. Insights from Mead (1918, 1934), Douglas (1966, 1992) and Lianos and Douglas (2000) are main theoretical references at this level. Second, this conception will be deployed to redefine an understanding of the conceptual structure of criminal law, mapping how ‘hierarchies’ and ‘lexica’ of dangerousness shape the definition of legal rules, influence the development of criminal offences, and limit the effectiveness of legal reform. This will build upon the work of critical legal scholars, especially Farmer’s (2016) investigation of the role of criminal law in securing civil order. And third, the project will develop a specific analysis of how contemporary conditions of insecurity work to exacerbate the dangerous essence of criminal law, by linking dangerousness to issues of neurotic citizenship (Isin, 2004) and hostile solidarity (Carvalho and Chamberlen, 2018).

Methodology

This project requires a novel methodological approach to the study of criminal law, one which sees legal doctrines and rules as inherently linked to their socio-political, cultural and symbolic context and effects. This approach is necessarily interdisciplinary, and thus complex; dangerousness will be deployed as the focus to anchor my analysis.

Phase 1 will elaborate the framework around dangerousness, deploying conceptual analysis and theoretical argumentation to produce the foundations for a ‘criminal law of dangerousness’.

Phase 2 will incorporate a socio-legal examination (drawing on scholarship, historical records, case law and statutory law, media and Law Commission reports, and Parliamentary debates) of the criminal law of England and Wales, mapping and critically discussing through concrete examples how ‘hierarchies’ and ‘lexica’ of dangerousness inform its structure and development. This application of an interdisciplinary conceptual framework into rigorous critical legal analysis is aimed at producing new explanatory and practical insights, by interrogating questions such as ‘if the criminal law is mainly about dangerousness, what does this tell us about the law of theft/murder/rape/duress?’

Phase 3 will focus on contemporary developments and debates on criminalisation, covering issues such as sexual and domestic violence, gang and knife crime, preventive criminal offences and fraud-related offences. By relying on insights from sociology, social psychology and social anthropology to link criminalisation to contemporary issues around otherness and insecurity (Lianos, 2013; Anderson, 2013; Fassin 2018), this phase inverts the frame of enquiry, asking ‘what do developments in criminalisation say about us, our society, and our relations to one another?’

Work Plan

I would take up the Fellowship from October 2019, for 12 months. The first trimester (October-December 2019) will be dedicated to Phase 1 of the methodology. I will draw on interdisciplinary expertise at Warwick, discussing aspects of the project with colleagues from Sociology, Philosophy and Politics. From January-May 2020, I will focus on Phase 2 of the project and work on an article about the place of dangerousness in the conceptual structure of criminal law, which I will present at the Socio-Legal Studies Association conference (April 2020) before submitting it to the Social & Legal Studies journal. From May-August 2020, I will refine my analysis through the specific case studies in Phase 3. I will liaise with criminologists, the Law Commissioner for criminal law, and with campaigning organisations such as JENGbA and Move for Life to discuss the practical implications of my project and co-organise public engagement activities. I will also present a paper on the ‘hierarchies’ and ‘lexica’ of dangerousness in the contemporary context of criminalisation at the Law and Society Conference (May 2020, USA), before submitting it to the Theoretical Criminology journal. From August-September 2020, I will focus on preparing a proposal for a book, ‘The Dangerous Essence of Criminal Law’, for submission to the Oxford Monographs in Criminal Law and Justice series at Oxford University Press. I will also present a paper on the findings of Phase 3 at the European Society of Criminology conference (September 2020), before submitting it to the Theory, Culture and Society journal.

Outcome

I intend this project to constitute the basis for the next stage in my research on criminal law. Immediately after the ISRF Fellowship, I will finalise the substantive chapters of the monograph based on the project and continue to develop the theoretical and practical applications of my framework. More specifically, I will pursue more sustained analyses of the relation between dangerousness and other relevant concepts linked to issues of identity, subjectivity and belonging, such as ‘Dangerousness and Masculinity’ and ‘Dangerousness and Citizenship’. In the medium-long term, these analyses will lead to the production of another monograph, entitled ‘The Dangerous Subject of Criminalisation’.

In addition, I will apply for funds at my home institution and externally to bring together scholars for a 2-day workshop on ‘Dangerousness and Criminalisation’ in 2021. Prospective participants will include criminologists such as John Pratt and Harry Annison, legal scholars such as Lindsay Farmer, anthropologists such as Didier Fassin and sociologists such as Michalis Lianos, as well as colleagues from Warwick. Overall, this study will establish a distinct critical approach to criminal law and criminalisation, which will both allow and seek a more direct engagement with the problematic role of criminal law in society, and thus contribute to our understanding of pressing real-world problems around social justice. The support of ISRF would not only allow me the space to pursue this research, but also provide me with a platform to promote much-needed critical and innovative thinking in criminal law scholarship and in socio-legal studies more broadly.