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Malice of Law

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Malice of Law Malice of Law Author Crofts, Penelope Published 2012 Thesis Type Thesis (PhD Doctorate) School Griffith Law School DOI https://doi.org/10.25904/1912/3079 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/365632 Griffith Research Online https://research-repository.griffith.edu.au Malice of Law By Penny Crofts BEc, LLB (Hons), LLM (Syd), MPhil (Cambridge) Supervisors: Professor William MacNeil (Griffith University) Professor Shaun McVeigh (University of Melbourne) The following dissertation is submitted in fulfilment of the requirements for the Doctor of Philosophy degree. Griffith Law School Griffith University Queensland, Australia September 2011 i ii Abstract This thesis places malice at the centre of an account of criminal law jurisprudence. Malice is a well-known subject and object of criminal law. In legal materials, the concept of malice has had a consistent relationship with that which is bad, blameworthy, culpable and/or undesirable. An exploration of how malice has been organised and expressed is one way of analysing legal ideas of wickedness. Legal constructions of malice have varied across time, place and offence category. I analyse legal constructions of malice in homicide legal doctrine from the 13th century onwards. The thesis makes two gestures. The first is reconstructive. In contemporary jurisprudence malice is disregarded, ignored and trivialised. I reconstruct malice both historically and in contemporary criminal law. This also resuscitates the relationship of criminal law with morality. I reconstruct (part of) the substance of what it means to be bad or wicked in jurisprudence. My intervention is thus therapeutic — through care, I restore malice and its history to the law. My second gesture is critical. A basic premise of my thesis is that the criminal legal system is a system of blaming. The legitimacy of this system is based partly upon claims that the law accurately identifies and punishes culpability. Despite this long-term, central project of the criminal legal system, contemporary legal doctrine does not communicate or construct a coherent, persuasive account of what it means to be sufficiently bad or wicked for the purposes of criminal law. I am critical of proposals for a criminal law empty of normative content. This thesis resuscitates a classic notion, present in older legal materials, of wickedness as an absence of goodness, a lack or dearth. This model is a reminder of the intersection of the individual and the social in constructions of wickedness. On this model, the failure to think about social values may in itself be wicked, and the failure of legal doctrine and jurisprudence to articulate and debate model/s of wickedness is not only irresponsible, but also wicked. My intervention is thus prudential. Not only do I care for malice, but I also highlight the need for care of malice, and how this may assist with judgment and legal materials. iii Statement of originality This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Signature: _________________________________________________ Penny Crofts September 2011 iv Contents Abstract ...................................................................................................................... iii Abstract ...................................................................................................................... iii Statement of originality ............................................................................................ iv Acknowledgements ................................................................................................... ix 1 Introduction .............................................................................................................. 1 The criminal law as a system of blaming .................................................................. 4 Thesis overview ...................................................................................................... 21 Chapter 2: Medieval malice — disorder and purity of heart ........................ 22 Chapter 3: The poisoned apple of malice ..................................................... 23 Chapter 4: Stephen’s monstrous malice ....................................................... 25 Chapter 5: Malevolent outlaw of law ........................................................... 27 Chapter 6: The negligence of Lavender ........................................................ 28 Method .................................................................................................................... 30 Criminal event .............................................................................................. 42 2 Medieval malice: Disorder and purity of heart ................................................... 45 Modern interpretations of malitiam ........................................................................ 50 Legal materials and offence formulae ..................................................................... 61 Legal materials .............................................................................................. 61 Legal formulae .............................................................................................. 63 Malitiam as wickedness .......................................................................................... 65 Malitiam as disorder ............................................................................................... 68 Harmful consequences and manifest criminality .................................................... 76 Harmful consequences .................................................................................. 76 Manifest criminality — the requirement of a killing .................................... 82 Inner purity and concordia ...................................................................................... 86 v Conclusion .............................................................................................................. 94 3 The poisoned apple of malice ................................................................................ 96 Legal materials: Plowden and the treatise writers ................................................ 102 The legal context: Malice the ‘grand criterion’ .................................................... 107 Poisoning and collective images of blameworthiness .......................................... 115 Subjective culpability — transferred malice .............................................. 116 Harmful consequences ................................................................................ 122 Manifest criminality .................................................................................... 125 Circumstances that shew the heart to be perversely wicked ....................... 132 The apple ............................................................................................................... 141 The worm in the apple .......................................................................................... 149 Myth of origins ........................................................................................... 150 Boundaries incorrectly drawn ..................................................................... 151 Malleability and mutability......................................................................... 156 Conclusion ............................................................................................................ 159 4 Sir James Fitzjames Stephen and monstrous malice ........................................ 162 Stephen the great criminal lawyer ......................................................................... 166 Legal science and the place of malice ................................................................... 170 The science of law ...................................................................................... 172 Malice as intentional wrongdoing .............................................................. 176 Malice towards malice and the monstrous ............................................................ 181 The monstrous ............................................................................................ 182 Monstrous fiction ........................................................................................ 185 Creating a monster ...................................................................................... 188 Key attributes of the monstrous .................................................................. 190 An infusion of malice ............................................................................................ 204 vi Malice towards other treatise writers .......................................................... 205 The need for malice .............................................................................................. 213 The inadequacy of the cognitive ................................................................. 213 The authority and power of law .................................................................. 220 Regret for malice ........................................................................................ 224 Conclusion ...........................................................................................................
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