The making of the modern criminal law


Researcher: Lindsay Farmer

This project developed my work on criminalisation through a monograph on its history which brings together earlier work I have done years on different aspects of the history of the modern criminal law (codification, the development of legal treatises, the work of Glanville Williams, jurisdiction) together with some new themes.

My starting point, though, is rather different from most of the contributions to recent debate on criminalisation. Instead of beginning by asking what principle or principles should guide us in defining or limiting the scope of state action, it is to ask what I see as the prior question of how it is that the question of criminalisation has come to be framed in these terms. And, going further, I look at the development of the institutional conditions that underpin and make possible our contemporary understanding of criminalization.

The book is in two main parts. The first will look at the making of the modern criminal law. It will look specifically at the emergence of the criminal law as a distinct body of rules, organised according to a distinct conceptual structure, and which performs a particular social function. One distinctive feature of this part of the book is that I argue that the emergence of the criminal law is linked a more general aim of law, and of criminal law in particular, in securing civil order. This claim operates on two levels. First, it is to be understood as part of an argument that the scope of the criminal law, and hence of criminalization, cannot be understood solely in terms of the objects which are to be protected, but also in terms of the purposes or aims of that protection and the way in which these aims are protected in law. And just as the criminal law in general is directed towards certain ends, so too particular areas of criminal law are shaped by the perception of the end that is to be secured by the protection of these goods or interests. In general I argue that theories of criminalisation have focused on good or interest at the cost of considering the purpose or aim of the law. Second, I argue that the aim is not necessarily fixed or stable and that as it has changed over time this has in turn affected the perception of the proper scope of the criminal law. An awareness of this historical dimension is thus essential to a reflective understanding of the goods that we wish to protect and the reason why we wish to do so. 

The second part of the book moves to looking at particular crimes or areas of criminal law, to study and analyse patterns of criminalisation in these areas. It looks at the areas of property, the body, sex and language to see how particular objects of criminal law have been conceptualised and at the types of interferences with these objects that have been treated as criminal – for instance, how the idea of property or the person has been formulated in criminal law as something that is worthy of protection, and then at the types of interference with property that have been regarded as sufficiently serious to fall within the scope of the criminal law. The aim here is to show first how the objects of the law change over time and that our ideas of wrong or of harm are in many cases contingent, or linked to the aims of the particular area at particular periods.

Key publication:

L Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford University Press, 2016)