2 - Criminal Laws in Context

Summary

In this Chapter, we explore in more detail the relationship between criminal law and the social and procedural contexts in which it is invoked, interpreted and enforced. Taking criminal law simply as a set of doctrinal rules is to fail to understand it. Taking the criminal process simply as a given in which criminal law doctrine is developed is to fail to understand both criminal law and criminal process. We note in the first part the existence of a wide array of social methods of defining and dealing with ‘deviance’, ‘anti-social behaviour’ or ‘wrongdoing’. These include the total set of practices, norms and institutions which seek to shape our attitudes, producing a variety of social norms and directing our internalisation of those norms. We can therefore identify a large number of educative, preventive, coercive and reactive practices which have a relevance to and are in some respects analogous with the formal techniques of criminal law. We then move in the second part to examine how these broad normative systems shape criminal law, before focussing in the third on the institutions, players and practices that collectively enforce criminal law.

Thus before we consider the formal aspects of due process and criminal law doctrine in Chapter 3, we want to consider the criminal justice context, (very) broadly conceived. This will enable us to develop a more sophisticated understanding of how many purportedly central criminal law principles come to be relatively marginal in the practice of criminal justice.