ISRF Early Career Fellow 2019-20
ISRF Early Career Fellow 2019-20
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.
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.