The place of criminal law in contemporary legal education Part 1: Thoughts from a CEPLER workshop

[This post also appears on Ed Lines, my blog about learning in law and beyond.]

On 17 September I had a great day out at the University of Birmingham, where CEPLER, the Centre for Professional Legal Education and Research, hosted a day workshop entitled, ‘Re-imagining the teaching of criminal law’.  It was a fantastic event.  A room full of colleagues interested in reflecting critically on what criminal law is, its importance, and how it might be learned: what’s not to like?  It was my privilege to be able to give a presentation at the workshop. My presentation was entitled ‘The place of criminal law in contemporary legal education’. I was fortunate to go on last in the day, which meant that I had been able to sit and be inspired by other speakers and participants before kicking off my contribution.  Big thanks to CEPLER for hosting and loud applause to Dr Imogen Jones for organising. I hope that the event provides some momentum for colleagues to come together again to be inspired by each other, to test out ideas for learning design and curriculum development, and to reflect on the nature of criminal law and what it means to learn it.

An abstract of my presentation appears in the previous post in this blog.  Over this and a couple of future posts I will collect some of the issues which I referred to in the presentation, plus some unused material (insert your own criminal law joke about late disclosure here), and some supplements and reflections, prompted in no small part by contributions from and discussions with colleagues.

I should kick-off by noting that I feel very lucky to be an academic criminal lawyer.  You rarely hear complaints that the subject is ‘a bit dry’ or uninteresting.  Criminal law is, to be honest, not a hard sell.  But when something is not a hard sell, it’s easy to get a bit complacent about it, or to take it for granted.  I think I’ve been guilty of that myself over the years.  And it’s thanks to engagement with the ideas of colleagues at events such as this, that I have been challenged, drawing on the title of the workshop, to ‘reimagine’ my approach to criminal law and how I see its place in contemporary legal education.

In the presentation, I tried to work through some thoughts relating to three key questions:

  1. What do we mean by ‘criminal law’?
  2. Is ‘criminal law’ an essential part of being a ‘lawyer’?
  3. What are the implications of our answers to these questions for curriculum and learning design?

For now, I am going to focus on the first of these. I will return to the others in future posts.

What do we mean by ‘criminal law’?

I take the idea of ‘criminal law’ to be quite elusive.  Some of the most fun interactions I have had with students have been around the question of what actually ‘counts’ as criminal law; about where the boundary lies between ‘criminal law’ and ‘not criminal law’.  We may have some strong intuitions about what criminal law is.  And, when we are asked to identify what it is that distinguishes criminal law we might identify characteristics which are clearly relevant to criminal law; but those characteristics might also have some significance in other legal sub-domains, and therefore not truly be distinguishing features of criminal law.  So,we might think that the defining feature of criminal law is its connection with punishment. But there are other areas of law which also have a ‘punitive’ dimension – exemplary damages in tort for example.  We might think that criminal law is distinctive because of the role of the state in determining the consequences of liability.  However, we know that alternative paradigms – restorative approaches for example – might be used in situations involving behaviour or allegations which we would ordinarily characterise as criminal, but from which the State is consciously marginalised as parties ‘collaborate’ to find an acceptable solution.

I also take the elusiveness of ‘criminal law’ to be at odds with what appears to be a broadly accepted ‘route map’ through and canonical content associated with the ‘discipline’.  So, criminal law typically involves a journey from the so-called ‘general part’ – the apparently overarching principles which apply to all, or at least to a significant proportion of offences, to the ‘special part’, in which the elements of specific offences and defences are studied.  The journey through the subject focuses on substantive law, is largely doctrinal, and is essentially positivist.  Here are a few problems associated with this approach:

  1. It involves a disproportionate focus on more serious offences. It was great to hear Doreen McBarnet’s fabulous article, ‘Magistrates’ Courts and the Ideology of Justice’ ((1981) 8 British Journal of Law & Society 181-197 (read it and see how much has(n’t) changed)) cited in discussion at the workshop.  The standard route through criminal law underplays significantly the significance, in the lived experience of criminal law, of offences of lesser levels of seriousness, which are tried in courts in which discussions of ‘law’ are notable by their absence.
  2. It obscures problems of coherence of the ‘general part to special part’ journey. So, to what extent are the principles of the general part actually general?  For example, we know from the case law that causation, the staple of result crimes, means different things in the context of different offences.
  3. It pays insufficient attention to the porousness of the boundaries of criminal law and criminal justice: at the ‘lower’ end, ‘crime’ bleeds into anti-social behaviour; but as a concept, anti-social behaviour must have some degree of autonomy, as it is conceived as justifying coercive State interventions even in the absence of crime; at the ‘upper’ end, where does the domain of criminal justice stop and that of ‘anti-terror’ law begin?  Some of the deprivations of liberty which are associated with the latter, we would also ordinarily think of as being associated with criminal law, and yet the regime of anti-terror law is constructed precisely in order to be something different from criminal justice, and to be a domain in which the conventional due process protections for suspects do not apply.

Moreover, the conventional approach to criminal law masks a number of connections, for example:

The connection between rules of substance and rules of procedure

On one level this is an instrumental concern, in that it makes it harder for would-be legal professionals to understand criminal law in a way which makes sense to their future professional lives.  Moreover, to miss the connection between substance and process risks conceptual inadequacy: there are some rules which we might ordinarily label as substantive or procedural, but which cannot be fully described without reference to both. So, when we discuss strict liability, we may be told by the courts that the content of substantive law is largely non-negotiable in courts and is at the discretion of the State; however, we are also told that burdens of proof are contestable. A decision to define an offence as one of strict liability is both a decision about the content of law and about the extent to which the State is effectively absolved from having to prove that which it might ordinarily be expected to prove (and if the latter is not the case, why do we make so much of the notion of a presumption of a mens rea requirement?).

The connection between liability and the possibility of punishment

There may be little visibility of the relationship between liability and sentencing or of underlying questions about the proper purposes of punishment.

The connection between substantive law and criminal justice policy

Failure to make this connection gets in the way of asking why some behaviours are criminalised and others not.  Or why the criminalisation of certain activities happens in certain ways at certain times.  Or why certain approaches to sentencing are in vogue and others not.  The operation of power – the power to determine the content of criminal law – and the inevitable non-neutrality of the lawmaking decisions which that entails, may be obscured.

The connection between substantive law and the law of evidence

By failing to make this connection, we can overlook some interesting (and important) epistemic questions – for example, how do we prove that a defendant had mens rea when we cannot know their state of mind?  And, as with the (lack of) connection with procedural rules, we can skate over some fairly big policy issues.  So, when we consider the fact that in many allegations of sexual offences, there will be no witnesses other than the complainant, or when we ask what we do when we have a witness who is absent for a good reason, we are not just faced with some interesting, and fairly complex evidential rules. We also have the opportunity to reflect on the coherence of the relationship between the substantive law and the law of evidence – does the latter permit the former to deliver on its promises?  Moreover, those evidential rules tell us a considerable amount about how the State manages the relationships among different interests in criminal justice.

The implication of suggesting that the conventional account of criminal law is problematic is that there may be better ways of constructing the ‘subject’.  The discussion above refers to some possible building blocks.  And ‘constructing’ is probably the right word here.  I suggest that not only is the criminal law itself ‘constructed’, but so also are the curricula, programmes and modules in which it sits.  These are not natural phenomena.  They are the product of choice – about conceptions of the discipline, about pedagogic priorities, about the relationship between the academy and legal practice.  And that is fine.  The point is that the parameters of what counts as ‘criminal law’ for the purposes of legal education are not inevitable; there may be respectable alternative accounts.  But if there is, broadly speaking, a reluctance to countenance these alternative accounts, what gives rise to that? I suggest that is principally attributable to path dependency, fear and inertia: this is how it has always been done, and the only change year to year is that the case list is longer. We may sometimes attribute the state of things to the requirements of the professional bodies, but I find that explanation ultimately unconvincing – the Joint Statement on Qualifying Law Degrees was noticeably light touch, and that means attempts to hide behind it must fail.

So, there are issues with a ‘conventional’ approach to criminal law;  and there are a range of reasonable ways in which the subject might be constructed and approached.  One reference point – among several – against which we might consider the appropriateness of an approach, is the extent to which it supports desirable outcomes in legal practice.  In this context, we might be interested not merely in the ways in which criminal law helps would-be lawyers to be ‘practice-ready’ and to do the job, but also the ways in which it fosters a spirit of enquiry and reflection and the capacity to critique the job.  I am aware of suggestions that criminal law is a dispensable component of legal education, and I concede that the need for criminal law in that context is not self-evident. However, in the next post, I am going to try to make a case for some engagement with criminal law as part of the irreducible core of legal education and of being a ‘lawyer’, before going on in a third post to explore some aspects of what a curriculum in which ‘good’ criminal law learning is taking place might look like.

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