The political nature of juridical individualism

In Chapter 1, I outlined the principles of individual justice and rational legalism which underlie the orthodox theory and practice of criminal law, and indicated at the same time the ambivalence within that theory to them. In Chapter 2, I suggested that the time had come to move beyond attempts to shore up or reconstruct the criminal law so as better to match principle to practice. I proposed a historical approach to the principles of the criminal law, and identified the link between the legal forms of social control that emerged in the early nineteenth century and the ideologies of the Enlightenment.

The link was provided by the two Enlightenment-inspired philosophies of retributivism and utilitarianism, and the key to understanding the nature of the law lay in the contradictions at the heart of these two philosophies of punishment. These contradictions were historically generated in the modern period by the interplay between an abstract individualist ideology of just punishment and the reality of crime as a social and political phenomenon. First, crime was the product of the conditions in which the lower social orders lived and against which they struggled, but in philosophical ideology it was the product of a free individual for which punishment was deserved. Second, this abstract ideology represented the social world as consensual, whereas in reality it was racked by social and political conflict.