The chapter provides the outline of a specifcally democratic theory of imprisonment. It reviews liberal penal theory and identifies the failure of the idea of proportionality to provide adequate limits on the severity of punishment. It then adapts Alan Brudner’s account of Hegel’s theory of punishment to specify the limited conditions in which imprisonment is consistent with the political equality of citizen-rulers. It demonstrates the inherent decremental tendency of this ‘democratic retributivism’ and argues that the recent rising rates of imprisonment in the US and the UK are explained by the contemporaneous retreat of political equality, sometimes now referred to as ‘post-democracy’. It concludes by considering the position of non-citizens in a penal regime of political equality; the persistent social injustice of democratic state punishment; and the potential for political equality to abolish both the prison and criminal justice.

A Working Paper version of ‘A Democratic Theory of Imprisonment’ above.

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This paper offers a critical response to Alan Brudner's magisterial Punishment and Freedom. Brudner’s Hegelian political theory of criminal law makes a significant advance over predominant moral theories. However Brudner misleads when he claims that the general part of the criminal law can be understood as a dialectical unity of three antithetical paradigms of individual freedom, a unity he calls dialogic community. The rise of preventive criminal law in the UK reveals that the tension between these paradigms has proved impossible to manage in practice. Brudner’s painstaking elaboration of the paradigms of liberal freedom nevertheless allows us to identify the source of the breakdown of the dialogic community, and to understand better the subsequent decay of liberal order.

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This paper investigates the social sources of the idea of the vulnerable legal subject through a critical reconstruction of Evgeny Pashukanis’s ‘commodity form’ theory of law. Contemporary UK law is characterized by the prevalence of harm-prevention offences that construct the subject of law as either a vulnerable potential victim or a dangerous threat. Pashukanis explicitly ruled out the possibility of such a structure of law. Correcting Pashukanis’s error in this respect makes clear that laws premised on the vulnerable legal subject are compatible with commodity exchange relations but that they give form to an inversion of the classical liberal legal ideology. The social sources of this ideological inversion, its significant implications for abolitionist theory, and the reasons for Pashukanis’s one-sidedness are each considered.

A working paper version of ‘Pashukanis and Public Protection’ (see abstract above).

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In Hirst v UK the Grand Chamber of the European Court of Human Rights ruled that the UK must end its blanket ban on convicted prisoners voting. This article argues that the Grand Chamber’s reasoning undermines collective political self-determination by assuming away the essential connection between political citizenship and civil liberty in a representative democracy. It outlines a democratic theory of imprisonment and argues that the democratic citizenship of imprisoned offenders is suspended not by their disenfranchisement but by their imprisonment. While many aspects of the UK’s penal practice are inconsistent with democratic self-government, the voting ban is not one of them. The article concludes by outlining the numerous rights that prisoners should enjoy in a democracy.

 

Recent criminal legislation has been characterized by offences intended to pre-empt the causing of harm by criminalizing purely preparatory acts, possession or breach of preventive orders. The chapter argues that although this legislation is sometimes thought of as an illiberal outcome of democratic politics, it is better understood as resulting from the pursuit of a liberal principle to the point of undermining the possibility of collective self-government. The chapter first examines the ambiguous position of these offences in liberal criminalization theory. Then it is argued that the political independence of the citizenry from government is a precondition of truly democratic representation and that the pre-emptive offences violate the conditions that ensure that political independence.

In the dispute between Strasbourg and Westminster over prisoners’ voting rights, the arguments of both sides help to consolidate the emerging ‘post-democratic’ political regime in Europe. The UK government’s position in Hirst v UK, and the judgments of the Strasbourg courts in Hirst, Frodl v Austria and Scoppola v Italy, all assume that democracy is no more than a matter of voter-consumers choosing between competing alternatives in the political market place. This minimalist conception of democracy also underlies the argument that enfranchising convicted prisoners will contribute to their rehabilitation. If, by contrast, democracy is thought of as a regime that seeks to achieve the collective self-government of the people, then one of its principles is that only those who enjoy civil liberties and formal independence of the executive can be self-governing citizens. Enfranchising prisoners subverts that democratic principle.

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A short article explaining that the criminal offence of breach of ASBO is preventive in orientation and that this is confirmed both by Court of Appeal judgements and the Definitive Guidelines issued by the Sentencing Guidelines Council. It also briefly argues that the ASBO is fundamentally anti-democratic and for that reason needs to be repealed. 

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The paper situates Douglas Husak’s normative theory of the limits of criminalization in its contemporary political context, one in which the crime victim is the representative subject of law. It is argued here that new UK terrorism and money-laundering offences prove compatible with the constraints in Husak’s theory, once they are understood as protecting the vulnerabilities of the potential crime victim. On this basis, the possibility is raised that Husak’s theory may tend to legitimate rather than limit much of contemporary ‘overcriminalization’, notwithstanding both his express intentions to the contrary and the liberal intellectual resources he draws on. The implied tension in liberalism is considered and other approaches to the problem are suggested.

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This article reviews the case law on the offence of breach of an ASBO and offers a theory of the public wrong identified by the courts as the reason for punishing people who commit the offence. It argues that the wrong that unifies all breaches of an ASBO is the insecurity caused by defendants’ failure to address their disposition to cause insecurity in others. The greater is the insecurity that they are thought to have caused as a consequence of their failure, the more serious is the wrong and the more severe is the sentence to which they are liable. It is argued that this public protection theory gives a better account of the positive law than two competing accounts, namely the theory that the offence is simple defiance of the court’s authority and the theory that breach of an ASBO is a ‘composite offence’ intended to aggregate many minor wrongs for the purposes of sentencing. Some of the problems and questions raised by the public protection rationale for punishment are briefly considered.

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Criminologists and criminal law theorists have explained the ASBO and the terrorism Control Order as purely instrumental measures in the service of crime control. The political consent enjoyed by these new Civil Preventative Orders has for the most part been regarded in the expert literature as an example of penal populism which has thrown aside sound legal principles. This paper, by contrast, investigates a possible normative basis for these orders. It first analyses and reconstructs their substantive law, arguing that they impose a liability for manifesting a disposition which fails to reassure others. It then investigates the basis for this liability in official anti-social behaviour and counter-terrorism policy, both of which emphasise the vulnerability of normal citizens. The paper then proposes that the ‘vulnerable autonomy’ which these policies and legal instruments seek to protect is an axiomatic feature of the political theories of ‘advanced liberalism’. Finally, the claim made by normative criminal law theorists that Civil Preventative Orders are illegitimate is reconsidered in the light of the theory of vulnerable autonomy.

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This paper seeks to explain two problems posed by the history of criminal law doctrine by situating them in the context of the political sociology of citizenship. First, the paper outlines the logical connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and the contemporaneous emergence of universal political citizenship. Secondly, it argues that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of 'modern democratic citizenship' as the latter were conceptualised by T. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent philosophical rationalisation of the modern criminal law, it proposes that situating the criminal law in its environment of citizenship will help us to understand better the tensions that underlie contemporary challenges to its doctrine.

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Seeks to develop a clearer understanding of the legal definition of anti social behaviour rendering a defendant liable to an anti social behaviour order. Analyses in detail the elements of anti social behaviour contained in the Crime and Disorder Act 1998 s.1(1)(a), s.1(1)(b) and s.1(5), identifying the theoretical assumptions contained therein around a concept of individual citizenship status that itself depends on communitarian categories of positive duty, relationship and character. Considers the anti social behaviour order's hybrid procedure, contrasting the conceptual structure with the existing criminal law and the consistency of anti social behaviour order proceedings with the civil procedure in the light of the House of Lords judgment in R. (on the application of McCann) v Manchester Crown Court.

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