This thesis is an historical analysis of the concept of the abstract individual in English criminal law, exploring its origins and subsequent development in order to establish a clearer understanding of its place within the modern legal order. It argues that the abstract individual was forged in the coming together of community and positive law in the foundation of criminal law, a process developing from the seventeenth century onwards. The abstract individual emerges as a technique through which the order of the criminal law characterised by the use of positive law within its practices realises itself as part of the life of the community. By locating responsibility in abstract states of mind, a conceptual distinction is imposed between criminality and its manifestation in external actions which both differentiates criminality from the direct perception of the community, whilst necessarily drawing upon that perception in order to make such criminality appear. Located at the point where criminality as constituted within the perception of the community meets with its constitution in reference to interests protected by positive enactments, the abstract individual represents the archetypal image of dangerousness within the order of modern criminal law – or, in other words, the lawless spirit. Uncovering the abstract individual’s instrumental quality indicates a possible way of overcoming difficulties faced in the current literature locating the supposedly moral foundation of the abstract individual in relation to modern criminal law’s governing function. The historical analysis conducted in this research contains three main components. The first traces the emergence of abstract thought about the person in criminal legal practices, revealing its association with the breakdown of an assumption of the unity of legal and natural order and the increasing differentiation of the two. The second identifies this 3 vision of legal order as part of the common law concept of the nature of law and legal authority developing in the seventeenth century, locating abstract thought about the person as part of the life of the community. The third traces the emergence of the abstract individual in criminal law doctrine, highlighting its role as part of an attempt to assert the jurisdiction of the criminal law more effectively over an increasingly complex social environment by representing conduct dangerous to newly recognised interests within the order of the criminal law.
The Lawless Spirit: A Portrait of the Person in English Criminal Law
Goldup, T. P. (Author). 1 Nov 2015
Student thesis: Doctoral Thesis › Doctor of Philosophy