ABSTRACT
This chapter explores what we might mean by good and evil, and argues that these terms remain salient for a critical, socio-historical, understanding of criminal law. It draws upon a meta-ethics of freedom and solidarity to explain what good means in recent mercy killing cases in England and Wales, and what evil means in Arendt’s phrase, the ‘banality of evil’ (Arendt 1964). My original title was ‘the Scene and the Crime’, and the basic argument was that if we are to understand ‘the crime’, we need to understand its ‘scene’, which includes substantive ethical terms like good and evil. What might be surprising in this is the link between this argument for ethics and the general thrust of a critical understanding of criminal law. If we were to identify in short order what forms the core of a critical
understanding of criminal law, it might involve seven points:
1. that concepts of legal responsibility are shaped by their role in historically configured political-institutional arrangements which they help operationalise;
2. that, across an historical field in which different political-juridical forms are required, a key figure in criminal law, as in other areas of law such as contract, is that of the formal, abstract and general legal subject;
3. that this formal legal subject, because it abstracts the individual from the social and political context in which he or she operates, acts to neutralise or finesse social, moral and political conflicts brought about by structural inequalities and violence; whilst
4. providing an individualist ‘morality of form’ grounded in a conception of negative liberty that is not without its own (limited) ethical value; that this
5. generates a range of effects in the criminal law that are centred on a core architectonic of offence (mens rea and actus reus) and defence; which in turn
6. leads to a range of oppositions, form-substance dichotomies and the antinomial ‘doubling’ of concepts in the law (offence and defence, motive and intention, direct and indirect intention, subjective and objective recklessness). At the core of this antinomial doubling is an engagement between legal forms and the social contexts in which they operate (‘crimes’ and their ‘scenes’). This engagement ramifies within legal forms (hence the doubling of concepts), but
also leads to complex relationships between those forms and the practices, processes and institutions in which they are embedded.1
