The rule of law and the political economy of criminalisation: An agenda for research

Historicising criminal law doctrine: Comparing penality

The first of the projects on which I have been working over the last decade analyses the development of ideas of responsibility for crime in English law from the 18th century to the present day (Lacey, 2007a, 2008b). Ideas about what makes it appropriate to hold someone responsible for their conduct are central to the legitimacy of modern criminal law. As such, they have attracted huge attention in analytical jurisprudence, normative philosophy and legal doctrinal analysis. My project, by contrast, examines the relationship between developments in legal conceptions of responsibility and broader legal, social, political and economic developments. Since the 18th century, the dominant philosophical conception of responsibility has been founded in capacities for understanding and self-control: the responsible subject of modern English criminal law is an agent who acts in knowledge of the relevant facts and with normal volitional capacities. This conception contrasts with the notion of responsibility as founded in assessments of bad character – a conception which rests upon and expresses evaluations of the person as manifested in their conduct or more generally – which I argue to have been dominant in early 18th century criminal justice. Both capacity and character conceptions of responsibility contrast in turn with a third conception, sometimes known as ‘outcome responsibility’: in other words, the view that responsibility is founded simply in the causation of harmful outcomes (Honoré, 1988), which has played a key role in English criminal law from at least the mid 19th century. Yet it took nearly two centuries for the philosophically (and culturally) dominant notion of capacity-based responsibility, institutionalised in integrated doctrines of mens rea or fault and defence, to be realised fully in English criminal law. How, I ask, did English criminal law establish its legitimacy without a developed doctrine of capacity-responsibility? What institutional and social developments were necessary for the realisation of capacity-responsibility? Have ideas of responsibility as founded in bad character ever disappeared (Lacey, 2011b)? And how, in both theory and practice, do these very different principles and patterns of responsibility-attribution relate to one another at different times?

The second project on which I have been working develops a comparative political economy of punishment (Lacey, 2008a, 2011a, 2012a, 2012b). Why is it that, notwithstanding proportionately comparable rising and falling crime rates in most OECD countries over the last 50 years, reaction in terms of levels of punishment has been markedly varied? I set the nature and genesis of criminal justice policy in Britain and America within a comparative perspective, to make the case that, far from being invariable, the increasing punitiveness of these countries does not characterise all ‘late modern’ democracies (Garland, 2001). Rather, certain features of social, political and economic organisation, characterising two systematically different ‘varieties of capitalism’ (Hall and Soskice, 2001), favour or inhibit penal tolerance and humanity in punishment. The distinctive labour market and production regimes, political systems and welfare states (Esping-Andersen, 1990; see also Cavadino and Dignan, 2006; Sutton, 2004) of ‘liberal’ versus ‘coordinated’ economies have a key impact on criminal justice: the capacities which governments possess to develop and implement criminal justice policies, and the constraints under which they do so, are a function not only of perceived crime problems or the cultural norms or macro-economic forces which surround them, but also of institutional factors distinctive to particular political and economic systems (Iversen and Soskice, 2006).

It is quite common in recent literature, both in and beyond punishment and society scholarship, to argue that globalisation has led to a decisive decline in the differences among the legal and economic systems of different advanced democracies, both through increased policy transfer and through the imperatives of competition, for example through the flexibilisation of labour markets (Reiner, 2007; Wacquant, 2009). Yet, notwithstanding a degree of convergence, ‘globalisation’ has in fact left many of the institutional differences between advanced democracies intact, in part because they provide continuing comparative institutional advantages. And these institutional differences help to explain the striking differences in crime levels and penal severity in otherwise relatively similar societies. Only by understanding the institutional preconditions for a tolerant criminal justice system, I argue, can we think clearly about the possible options for reform within particular systems.

On the face of it, these may seem to be very different projects, each of them rather tangentially related to the rule of law: one concerned with developments in legal doctrine and the history of ideas; the other concerned with the development and implementation of penal policy.

But as work on each has proceeded, I have come to see strong connections between the two; and these connections indicate the need for a further programme of research, and one in which the significance of the Rechtsstaat/rule of law, as representing both a general aspiration and different conceptions of that aspiration, will be more explicit than it has been in my research to date.

Responsibility in the context of criminalisation

To make sense of the patterns revealed by my historical analysis of criminal responsibility, I have developed a set of arguments about what explains the shifting relationship between different patterns of responsibility-attribution in criminal law. These ideas have been shaped primarily in relation to England and Wales, but they provide an analytic framework which could readily be adapted to other systems.

Conceptions of responsibility take their colour from the institutions in which they are mobilised. And it goes without saying that, in the case of criminal law, those institutions, and the broader social context in which they operate, have undergone decisive changes in most advanced democracies since the middle of the 18th century. In England and Wales, from the 18th to the 19th centuries, shifts in legal doctrine (Fletcher, 1978) (in mens rea terms, defences, and conceptual mechanisms such as the presumption that defendants intended the natural consequences of their acts) co-evolved with shifts in the prevailing ideas of selfhood, agency and individual responsibility (Taylor, 1989; Wahrman, 2004), with decisive institutional changes in the trial and criminal process which might be summed up as a move towards formalisation and professionalisation (Lacey, 2012d; Langbein, 2003), and with macro-developments in economy, polity and society. These include the rapid development of capitalism, urbanisation, industrialisation, gradual democratisation, and the emergence of the sciences of mind and brain. At each level, these developments gave rise to new challenges and new capacities, as the nation state, with its rapidly expanding regulatory ambitions, confronted the key tasks of legitimating its criminal justice system and of coordinating the evidential and institutional basis for criminal conviction and punishment (Lacey, 2008b; in relation to the USA, cf. Blumenthal, forthcoming).

In order to fulfil their primary role of standard-setting, criminal justice systems must confront two broad tasks: the task of specifying and coordinating the evidential base from which conviction and punishment proceed; and the task of legitimating their exercise of power in relation to social actors (Lacey, 2001a, 2001b). Historical changes such as those which I have traced in England since the 18th century have affected both the legitimation needs and capacities of the criminal process, and its requirements and options in terms of coordination: the garnering and validation of knowledge. To name only the most important in the English system: the form of the modern adversarial criminal trial was shaped over the last decades of the 18th and early decades of the 19th century; the law of evidence was developed over a yet longer period; the gradual systematisation of matters such as law reporting, a framework for the regular testing of points of law via criminal appeals, and legal education fostered the decisive formalisation and professionalisation of criminal law. All of these developments spoke to changing legitimation needs, and changed coordinating capacities. Most obviously, the gradual extension of democracy fundamentally changed the legitimation conditions for criminal law (Lacey, 2012d). The development of the police, and the emergence of medical science and other forms of specialist knowledge and technology, posed further challenges – and possibilities – for legitimation, as well as fundamentally altering the criminal justice system’s powers of coordinating the knowledge base from which its judgments could be made. And the inexorable move to urbanisation and towards a more mobile and anonymous society deprived the criminal justice system of reliable sources of local knowledge on which the early 18th-century criminal process – decentralised and far less professionalised – had been able to rely in the prosecution of ‘insiders’, while also undermining the long-standing English practice of judging ‘outsiders’ in terms of their appearance. ¹

Given these decisive historical developments and changes in the nature of the criminal process, to which I am able merely to gesture here, it would be extremely surprising if the conceptions of responsibility mobilised in English criminal law had remained unchanged. On the other hand, practices of criminal responsibility-attribution have continued to draw upon certain relatively stable funds of legitimation, albeit that the inflection of the resulting conceptions has changed over time, as has the relationship between the different principles of responsibility-attribution in practice. I therefore suggest that the methodological tension between generalisation and attention to the particularities of difference (Geertz, 2000 [1983]: 167–234) can be resolved by recognising that, at an abstract level, the conceptual resources out of which particular legitimating and coordinating notions of criminal responsibility are constructed (including, notably, idea of legality, which is so closely related to the Rechtsstaat / rule of law) have remained relatively constant over the last three centuries, while the particular notions which those resources have allowed to be constructed have been shaped by the changing history of ideas, by changing technologies and accepted bodies of knowledge in the natural and social sciences, and by the form of legal, political and social institutions – itself contingent, yet setting up longer term effects through the dynamic of path-dependence. Thus practices of criminal responsibility-attribution have long exhibited a concern with some combination of character, capacity and outcome (or, as Fletcher, 1978, has it, manifest, subjective and harm or risk-based patterns of criminality): with ‘character’ standing in for both the irreducibly evaluative aspect of criminal judgment and for a particular conception of how blame attaches to persons and relates to identity; ‘capacity’ standing in for the concern with agency and personal autonomy; and outcome standing in for the concern with the social harms produced by crime. Yet the precise configuration of these elements, and the shape which each of them takes, has changed markedly over time within the English system, just as it varies as between different national and regional systems.

As my research has proceeded, I have therefore been able to revise my original hypothesis of a gradual shift from character- to capacity- or choice-based principles towards a more complex picture of a shifting alignment of apparently competing principles which coalesce, more or less successfully, to legitimate and coordinate criminal judgment under specific social conditions (Lacey, 2007a). While cultural, institutional and political factors have underpinned a real development and consolidation of capacity-based principles of responsibility-attribution during the 19th and early 20th centuries, regulatory imperatives have constantly generated pressure for reliance on outcome-based principles, producing a large body of strict liability offences in areas as diverse as health and safety, commerce, drugs and low level disorder (Farmer, 1997; Lacey and Zedner, 2012; Norrie, 2001).

More surprisingly, character-based principles of attribution, too, have survived the process of modernisation. And here lies the hinge linking my two apparently different projects. For it appears that perplexity about the grounds for strongly evaluative criminal judgment in a world increasingly informed by scientific theories of human behaviour, particularly in times of social insecurity or concern about crime, has generated periodic spikes in character- or status-based patterns of attribution which might have been expected to decline (Lacey, 2010a). The force of this dynamic turns out to be closely related to the social and political-economic factors which I have argued best explain post-war levels and practices of punishment (Lacey, 2008a). Indeed, it seems likely that character-based practices of attribution represent rather different dynamics in the two families of system. In the coordinated systems of northern Europe, practices such as the incorporation of evidence of bad character are acknowledged and consistent features of the system (Field, 2006), but they are closely constrained by judicial oversight, and reflect confidence in a degree of consensus about the evaluation of character, and about the limits of such evaluations. ² By contrast, in the majoritarian, adversarial political systems typical of liberal market economies, the pressure to resort to character- or status-based mechanisms exhibits volatile swings, registering especially strongly during times of perceived insecurity; while the production, labour market and welfare regimes of these countries, which generate higher levels of inequality than coordinated market economies, are conducive to spikes in political and popular concern about threats to security posed by economically excluded groups.

For example, in England and Wales, we are witnessing today what might be seen as a resurgence of ‘character-based’ principles of responsibility-attribution (Lacey, 2011b). Preventive measures which focus on particular categories of suspect, amounting to a distinctive modality of status-criminalisation; mandatory sentencing laws; counter-terrorism laws and enforcement practices which distinguish between foreign nationals and others; legal arrangements singling people out for restrictive treatment on the basis of assessments of their ‘dangerousness’; the expanded admissibility of evidence of ‘bad character’: phenomena such as these have abounded in recent criminal law in both Britain and the USA, as indeed in the other liberal market economies, substantially expanding the boundaries of criminalisation in both formal and substantive terms (Ashworth and Zedner, 2008; Lacey, 2009, 2011b). These phenomena, I argue, are a product not only of the punitive mentality which has characterised criminal justice policy in countries like Britain, Australia and, particularly, the USA, but also of the distinctive institutional structures which shape policy-making and the legislative process in these countries. It follows that we would expect to find the more stable punishment rates characteristic of the Northern European and Nordic coordinated market economies reflected in a more stable pattern of responsibility-attribution in those countries.

My argument about a recent resurgence of character-based patterns of responsibility-attribution in the English criminal justice system does not, of course, imply that recent developments amount to a reversion to 18th-century-type arrangements. The criminalisation of status, albeit in shifting forms, has enjoyed prominence in English criminal law at various points since the 18th century. A concern with the prevention of harm most certainly dates back to the creation of the administrative state, with its ambitions and capacities for regulation, in the first half of the 19th century. Yet the specific form taken by today’s move to ‘preventive justice’ is shaped by the particular capacities, dynamics and aspirations of nation states in a world of advanced technologies of communication, physical mobility and interdependence. Moreover, particularly in the liberal market countries, criminal policy is formed by a government accountable to an electorate within an adversarial, two-party system which fosters the politicisation of criminal justice, creating a volatile policy-making environment, particularly where both parties have embraced crime as a major policy platform (Lacey, 2008b, 2012a). Furthermore, and in stark contrast to the mid 19th century, that electorate is broadly drawn, is informed by a scientific culture which has made it optimistic about the power to control risk, and hence is rather intolerant of risk and insistent on government efforts to control it – particularly in the wake of insecurity attendant on economic restructuring and cultural disembedding (Zedner, 2009: 91–100). ³ Ironically – but perhaps inevitably – the mixed results of risk-oriented ‘actuarial justice’ (Feeley and Simon, 1992) have, however, contributed in both Britain and the USA to disappointed expectations and declining trust in governmental competence, and have accordingly intensified pressure for further restrictions on the ‘dangerous’ and the passage of ever broader criminal legislation (Ashworth and Zedner, 2008; Husak, 2007; Lacey, 2009).

This issue of the political context in which decisions about criminalisation are taken – a context in which legitimation and coordination problems have to be resolved by accountable actors in not only the legal but also the political process – provides a good place to start in any attempt to unravel the puzzle of the rise and fall of ‘bad character’ as an organising principle in criminal law. Consider the following, over-simplified but perhaps suggestive, model of the relevant developments in England and Wales. In a stable, relatively homogeneous, and non-democratic world based on status hierarchy, and a world in which the state had limited ambitions and capacities, yet was able to draw on considerable local resources of knowledge, norm-enforcement and regulation, a pattern of responsibility-attribution based on character made a great deal of practical and cultural sense. Local knowledge provided evidence of character in relation to insiders: the wandering mobility of the poor was long regarded as a significant social problem to be curtailed by the town watch, by the structure of the poor law and, not least, by the fact of ‘outsider’ status carrying with it its own stigma of presumptive criminality. Character evidence was key to the conduct of the trial; criminality was readily associated with status (an association also reflected in stigmatising physical punishments which left marks on the body); criminal prosecution was based on an assumption of bad character; and criminal conviction gave official imprimatur to that assumption.

With a move to a more individualised, mobile, anonymous and democratic world, the shape of both legitimation and coordination problems in criminal law changed, just as this period in the early development of capitalism saw significant changes to the civil law (Atiyah, 1979; Frank, 2010; Wiener, 1991). The subject of criminal law gradually became a rights-bearing agent, entitled to be judged in terms of his or her own particular capacities, intentions, knowledge. At the same time, the local resources of knowledge coordination diminished, and a formalised system of policing and a criminal trial had gradually to be constructed so as to garner the evidence necessary for trial. The gradual domination of the trial by lawyers allowed in turn for the refinement of technical doctrines of culpability; and the prevailing legal and political culture attached – via both Enlightenment conceptions of agency and utilitarian theories of human psychology, so influential on the criminal law commissioners (Smith, 1998) – special importance to individual mental states. This psychological and essentially factual view of responsibility in turn served to divert attention from any contested issues of value in a world which urbanisation, social mobility and democratisation were already rendering less morally homogeneous.

In England and Wales, this trajectory – at least across the terrain of ‘serious’ crime – towards an advertence-based standard of responsibility proceeded relatively smoothly thanks to two things. The first of these was the creation of many ‘regulatory’ offences of strict liability, which allowed the emerging state to pursue its instrumental goals cheaply and efficiently, reserving the costly proof of capacity-responsibility for a (vaguely defined) terrain of ‘real’ as opposed to ‘regulatory’ crime (Lacey et al., 1990: Chapter 1). The second was the extraordinary success of the early Victorian state’s creation of a modern criminal justice system featuring, in particular, a regular police force and an extensive prison system. Crime, especially in the rapidly expanding cities, became a serious social concern, but this in itself became a spur to further institutional innovation. In a fascinating amalgam of character and capacity cosmologies, the English penal system of the first two-thirds of the 19th century organised itself to shape convicts’ own capacities to work on their characters: declining crime rates then further helped to legitimate the gradually modernising system (Wiener, 1991; in relation to the USA, see Blumenthal, forthcoming).

But this move towards the investigation of individual capacity-responsibility – as the case of the regulatory offences reveals – was never complete. This was, not least, because the costs of a system fully realising the ideal of capacity-responsibility proven beyond reasonable doubt would have been prohibitive, even had the newly created criminal justice infrastructure been extensive enough to deliver it. Short cuts to proof, such as the presumption of natural consequences as intended, remained, even in relatively peaceful and optimistic times, important (Lacey, 2001a). In more difficult periods – those when the costs of determining individual capacity-based responsibility were particularly high, for example because of the scale of perceived crime problems – those short cuts seem particularly tempting. And such short cuts tend to be nested, explicitly or implicitly, within a legitimating framework of ‘criminal character’, itself shaped, variously, by scientific or religious doctrines (Lacey, 2010a).

This development is related to the widely noted decline of the broadly re-integrative penal welfarist settlement which dominated English criminal policy for the first two-thirds of the 20th century (Garland, 1985). This settlement began to break down in the early 1970s, under pressure from not merely rising crime but also a welter of economic, demographic and cultural changes which fundamentally altered the structure of criminal justice politics in Britain and in many other countries, including the USA. This is not the place to rehearse the familiar story of how ‘penal welfarism’ gave way to ‘penal populism’ amid a ‘culture of control’, creating a ‘prisoners’ dilemma’ for politicians and a tendency to ‘govern through crime’ (De Giorgi, 2006; Garland, 1985, 2001; Gottschalk, 2006; Lacey, 2008a; Pratt, 2007; Simon, 2007; Wacquant, 1999, 2009). The power of the narrative is, sadly, all too clearly attested in the soaring imprisonment rates in the liberal market economies which have seen this trend. My aim here is to suggest that these factors, charted so persuasively by criminologists in relation to criminal justice arrangements such as policing and punishment, are also fundamental to what explains the resurgence of ‘character’, and the declining practical significance of individual responsibility, in English criminal law. Amid a crisis of ‘security’ (Loader and Walker, 2007; Ramsay, 2012; Zedner, 2009), legislators are reaching for definitions and mechanisms which can reassure an anxious public that their concerns are being taken seriously – and that ‘the criminal threat’ can be contained. The construction of criminal classifications is a tempting mechanism here; and just as the late-19th century English legislative classifications – the feeble-minded, the inebriate, the vagrant, the fallen woman (Radzinowicz and Hood, 1999; Zedner, 1991) – reflected both prevailing anxieties and prevailing scientific theories and technologies, so today’s categories – the anti-social youth, the sex offender, the migrant and, above all, the terrorist – are appropriate symbols of ‘otherness’ relative to contemporary anxieties and technologies.

Both these anxieties, and the technologies available to meet them, are of course developing all the time. Amid an economic crisis which seems likely to add further intensity to the concerns about insecurity which have underpinned a renewed focus on character evidence and the invention of what amounts to a new generation of criminal status offences, we have reason to fear that those who form easily identifiable objects of anger, fear or resentment will find themselves increasingly the target for what we might call character-facilitated criminal responsibility-attribution. Non-citizens in general, and recent immigrants and asylum seekers more specifically, are an obvious potential target, particularly where their origins may be associated in popular or police consciousness with either terrorism or drug production, with obvious attendant risks for the Rechtsstaat/ rule of law (Zedner, 2010). These developments raise key questions about whether the insider-oriented, coordinated market systems of Northern Europe and the Nordic countries will be able to sustain the relative penal stability which they have enjoyed in recent decades (Lacey, 2008a: Chapter 3; Lacey, 2012b; Pratt and Eriksson, 2013; Sack, this issue). More speculatively – and yet more nightmarishly – new technologies such as DNA ‘fingerprinting’ and computer programmes which enable sophisticated forms of ‘offender profiling’ offer, or perhaps threaten, yet more technically refined mechanisms of responsibility-attribution based on notions of character responsibilisation to come, just as the emerging sciences of mind and brain, and of statistics, did in the late 19th century. Note moreover that several of these new scientific classifications exhibit more extreme assumptions about character as fixed or ‘essential’ than did their 19th-century forebears.

Directions for the future: A comparative and institutional approach

How might these hypotheses and insights be subjected to more systematic analysis, capable of testing how far they apply to differently institutionalised systems with different histories and cultures? In this section, I draw on this broad account of the co-evolution of legal doctrine, criminal process and political economy to sketch a research agenda for the systematic investigation of this broad issue, formulating a number of specific hypotheses which could be tested in a comparative study. This agenda would develop a detailed comparison of three countries – Britain, Germany and the United States – combining analysis of their current penal policies with analysis of their practices of legal responsibility-attribution in selected areas of criminalisation, and framing these within a broad comparative political economy of crime and control. Within these three case studies, the research would focus on homicide (representing the paradigm case of serious crime, and susceptible to relatively straightforward comparison); drug criminalisation; and public order offences (areas sitting on the cusp between ‘serious’ and ‘regulatory’ offences, and each of them a key focus of recent political concern and legislative and/or judicial activity in all three countries). Crucially, the analysis would examine these areas of law from three complementary perspectives: in terms of their doctrinal structure, scope and logic; in terms of the scope and pattern of their enforcement; and in terms of their legislative, social and political genealogy.

These countries constitute a good sample for a number of reasons. First, while Britain and the USA are, in terms of the model I am using, ‘liberal market economies’, Germany is a ‘coordinated market economy’. Second, while Germany belongs to the civilian family of legal systems, both Britain and the USA are common law systems. So this combination would facilitate the exploration not only of the impact of political economy type, but also of whether the distinctive form of legal system and procedure has an independent importance. Third, by focusing closely on the interlocking institutional arrangements in Britain and the USA – countries which belong to the same political economy and legal families, yet which display striking differences and similarities in recent criminal policy – further factors which may explain these intra-family differences could be identified and explored. An obvious candidate for exploration here would be the political system (Lacey, 2012a), which functions in importantly different ways in the two countries.

Fourth, and most important for this Special Issue, this group of case studies would allow us to give particular consideration to the influence of what one might broadly call legal or constitutional variables such as the distribution of power, including the specific shape which Rechtsstaat/rule of law conceptions assume in different countries. As is often noted, the rule of law and its European counterpart the Rechtsstaat are at once ubiquitous yet ambiguous concepts: they command wide allegiance, despite – or perhaps because of – that very open texture. Some scholars see the ‘virtue’ of the rule of law in exclusively formal terms (Raz, 1977); others argue that it should be seen as encompassing not merely formal values such as certainty, publicity and impartiality but also substantive ideals including human rights and democracy (Bingham, 2010); yet others discern a link between formal virtues and substantive outcomes (Fuller, 1964), or regard a rich procedural and argumentative conception of the rule of law as implying a more demanding conception of what counts as law (Waldron, 2008; for an illuminating discussion of different approaches, see Tamanaha, 2004: 91–113). Which of these conceptions is reflected in prevailing institutional arrangements in different countries is likely to constitute an important factor in shaping the development and execution of criminal policy. In particular, we might expect differences in concrete arrangements such as the scope of constitutional constraints on criminalisation; the appointment, tenure and accountability structure of key officials such as judges and prosecutors; and the existence and form of codification to be of practical significance.

The three countries which I have mentioned are particularly suitable for exploring legal or constitutional variables because they encompass a large number of possibly significant differences. Britain has a substantially ‘unwritten’ constitution and lacks a fully federal structure, while the relationship between the criminal jurisdictions of Scotland on the one hand and of England and Wales on the other provide a focus for investigating intra-country regional variation. Both the United States and Germany have written constitutions and strong traditions of judicial review, but their constitutions imply different constraints on criminal legislation, and judicial review of legislation in Germany is restricted to a special constitutional court. Moreover, the two federal systems work in very different ways. For example, whereas in Germany criminal law is primarily a federal matter, in the USA, federal jurisdiction, though important, is circumscribed; in this strikingly decentralised system, it is the states which enact, and largely sub-state-level police forces, prosecutors and courts which enforce, the vast majority of criminal law, often through the medium of locally elected officials such as District Attorneys; and regional differences in both criminal law and punishment are substantial (Lacey, 2010b; Lacey and Soskice, 2013; Stuntz, 2006, 2011). Moreover, each country has an entirely different system for the appointment and tenure of judges. Whereas many US judges are elected, British judges are appointed by a Judicial Appointments Commission, while most German judges are, in effect, civil servants: career professionals who train specifically for the judicial role. Finally, while codification has never been achieved in Britain, both Germany and the USA feature codified criminal law, but to different extents and in different forms.

These issues of legal and constitutional structure are matters on which strong assumptions are often made by criminal law scholars, yet on which there is relatively little systematic scholarship (for exceptions see Damaska, 1986; DeMichele, 2010; Savelsberg, 1994, 1999; Whitman, 2003) – not least because comparative criminal law scholarship has tended to remain focused primarily on legal doctrine. In developing the methodology for a genuinely socio-legal comparative analysis, it would also be possible to refine our understanding of how this broadly legal group of variables relates to the variables embedded in the original political economy framework which I have adapted. While there is strong evidence of the institutional linkages between the electoral, political, economic and welfare state variables, and between these and the criminal justice system, I am not completely satisfied with the account which I gave in The Prisoners’ Dilemma (Lacey, 2008a) of their relationship with constitutional and legal structure. Should these remain as a separate group of variables, or should they be incorporated as distinctive elements within the political variables? This question leads into fundamental questions about the independence or relative autonomy of legal vis-a-vis political, economic and other social systems – questions which have formed a core concern of legal philosophy and the sociology of law ever since the invention of these disciplines.

Conclusion: Methodological implications

Such a research programme would contribute not only to the substantive field of comparative criminal law and criminal justice scholarship but also to a number of theoretical and methodological debates of central relevance to our understanding of punishment in society (Lacey, 2012c): in comparative law, in criminal law theory, in legal philosophy and in socio-legal studies – areas which have also contributed to our understanding of the idea and ideal of the Rechtsstaat/rule of law. At a methodological level, a core aspiration would be further to develop and support an emerging view of criminal law theory as not exclusively a matter of analytical philosophy and doctrinal analysis but also an enterprise whose power to illuminate its terrain is premised on a concern not only with normative questions but also with their institutional and other conditions of existence. This aspiration of course implies the need for both historical and comparative analysis. ⁴

Another, closely related aim would be to contribute to a long-standing debate in jurisprudence about the nature of law and in particular about law’s distinctiveness or autonomy as a social institution. This is a question on which progress has arguably been hampered by the lack of interest in law’s institutional form displayed by the dominant traditions in contemporary legal philosophy, compounded, conversely, by a reluctance in much contemporary socio-legal scholarship to engage in general theory-building (for honourable exceptions, see Falk Moore, 1978; Galligan, 2007; Tamanaha, 2001; Twining, 2009). And finally, a further ambition would be to contribute to the emerging enterprise of re-establishing the links between socio-legal and criminological analysis and political science. Recent advances in both historical institutionalism and broad rational choice approaches which pay close attention to institutions have strengthened the importance of this relationship (Hall and Soskice, 2001; Thelen, 2004; Thelen and Mahoney, 2010). Yet it is one which has been more or less submerged in recent decades by the prevailing focus on rather specific sociological and economic methodologies. Only through deployment of a combination of these methods, I would argue, can the full potential of scholarship on crime, punishment and the rule of law in modern societies be achieved.