The Characters of Criminal Law

Abstract

Criminal law theorists necessarily start their theorizing with some idea of their subject. The dominant figure in the canon is the criminal actor understood as a freestanding individual, removed from his group affiliations. I call him Model 1. Then there is the demographic or social model of the criminal person. Here our disciplinary characters are treated as members of a population that have certain propensities. Those who subscribe to this second model tend to be thinking of real historical and social people, located in places and contexts, as well as people with bodies and sexes. I call this Model 2. Most criminal laws operate on the basis of a Model 1 person, with an individual without social characteristics or context. But occasionally these demographic concerns are directly expressed in criminal laws. The English criminal law of rape is one such law. It still names men as the people of concern. The English law of rape therefore poses a challenge for Model 1 individualists, requiring them to make some sense of this population-specific law. So, when individualists write about the nature of rape and its law, as they often do, it is highly revealing of their thinking about their own criminal law character. Here I consider the work of legal philosopher John Gardner, who has written influentially about English rape law, to discover what an individualist does with a law which acknowledges its population of concern. What happens when the two paradigms conflict?