ABSTRACT
In this chapter I want to think about the changing forms of the criminal law, and to seek to identify those structural conditions, forces and developments which predicate its shape and form. I plan to sketch some general elements and to provide some ideas towards a ‘structural history of the legal present’ (Garland 2001). My aim will be to problematise the relationship between ‘law’ and ‘authoritarianism’ by suggesting that what is often seen as an opposition in liberal legal theory in fact involves a relation of mutual implication or co-entailment. Liberal law possesses authoritarian dimensions along two axes. To make my argument, I propose to return to the two ideas underlying my
book, Crime, Reason and History (2001, 2014), concerning the nature of legal individualism and the conflicts which inform it. They were in their original form schematically presented, and I hope to develop them in order to help understand the complex structures that shape recent developments in the modern criminal law. These ideas focus on the ‘psychological’ and the ‘political’ aspects of the law’s individualist core. It is these two aspects which constitute the axes along which law’s authoritarianism can be analysed. This chapter will take two different directions and then I will try to bring
them together in a discussion of the present. One direction is to explore more concretely the historical trajectory of legal individualism canvassed in my previous work to take account of T H Marshall’s analysis of three different forms of citizenship and rights within modern liberal society: those pertaining to the civil, the political and the social spheres (Marshall 1992). I will argue that the key to the development of the post-war criminal law was the fusion of these three forms of citizenship in the period of consensus that began after 1945 and came to an end in the 1970s. I will then suggest that one way to understand developments over recent years is in terms of the unravelling of the post-war consensus. This involves an unravelling of the three forms of citizenship and a resulting reconfiguration. In their newly fissile condition, new possibilities, conflicts and contradictions for criminal law and justice emerged. In the process, the authoritarianism at the core of legal individualism becomes more evident. I deal with this in the second part of this chapter.
