Introduction

The quotation from Morton Horwitz with which I begin this introductory chapter contains two main arguments which are central to the analysis of criminal law attempted here. First, there is the identification of traditional legal scholarship as entailing a ‘rationalising enterprise’. The standard textbooks affirm the possibility of a rational (logical) approach to criminal law based upon the identification, elucidation and application of certain general principles to the existing law. Williams, for example, prefaces the first edition of his Textbook on Criminal Law with the statement that he has sought to show ‘that the law is mainly rational’, joining in criticism so that it may be improved through ‘the effort to expose its shortcomings’ (Williams, 1978, v). Smith and Hogan heap praise on one case as ‘a major step towards a rational and principled criminal law’ while criticising other cases for ‘the mischief wrought by those extraordinary decisions’ (Smith and Hogan, 1983, v). What makes those decisions ‘extraordinary’ is that they are irrational and unprincipled. The orthodox approach to criminal law scholarship is committed to what MacCormick (1993) has termed ‘rational reconstruction’, the ‘production of clear and systematic statements of legal doctrine, accounting for statute law and case law in terms of organising principles’.