Preface to the first edition

Summary

The impetus to write this book came from an earlier work (Norrie, 1991) which considered the broadly ‘Kantian’ historical development of the modern philosophy of punishment, and explained the concept of justice and the contradictions within it in terms of the ideological premises upon which it was based. Those premises, I argued, stemmed from the ideological form of the abstract juridical individual at the heart of modern legal theory. Towards the end of that work, I began to develop the central argument of the present book. If the philosophy of punishment is essentially contradictory in its forms, and if these forms are based upon legal ideology, then it ought to be possible to understand not only the philosophy of punishment but also the theory and practice of the criminal law as contradictory.

Sustenance for this view was derived from the North American Critical Legal Studies approach, but such work remained peculiarly ‘legal’ in an inverted way: it retained an insider’s commitment to law at the same time as it challenged law’s central premises. Critical Legal Studies has had surprisingly little to say about criminal law, but the leading work in the field (Kelman, 1981) does not move significantly beyond the activity of ‘trashing’, simple negation, of the rationalist premises of orthodox criminal law theory. This work is important, but in presenting a systematic critical introduction to the law’s general principles, I try to move beyond it. I have sought to synthesise a critical ‘internal’ account of criminal law which ‘takes doctrine seriously’ with an ‘external’ commitment to presenting law as a social and historical practice emerging in the first half of the nineteenth century.