Review of Peter Rush's: Butterworths Casebook Companions - Criminal Law, (Sydney: Butterworths, 1997)
| Author: | Alex Reilly BA, LLB, LLM (UBC) Senior Lecturer, Macquarie University Division of Law |
| Subjects: | Criminal law (Other articles) Principles of criminal law Theories of punishment (Other articles) |
| Issue: | Volume 4, Number 2 (June 1997) |
| Category: | Current Developments |
The introduction to Chapter One was heartening. It promised to open the subject of criminal law to the possibility of new voices, to replace monologue with dialogue and in doing so, to challenge the traditional authority of the law. The execution of this promise was auspicious. Under the headings "Definitions", "Origins", "Purposes", and "Personality and Subjection", Rush penetrates the many justifications for criminal law, revealing self-perpetuating definitions, a circular relationship between "criminal law" and the concept of law, and contingent historical origins of the law in Australia. He concludes with an explanation of law as an exercise of power and authority, leaving readers with troubling questions which compel them to dig deeper and read further.
The first Chapter is crucial to what follows and thus requires further comment. I felt on occasions that in his attempt to present a theoretical analysis of criminal law in the space of less than thirty pages Rush overgeneralised. For example, in the section on "Purposes", I found the few pages devoted to the rationales of "Retribution", "Deterrence" and "Rehabilitation" to be cursory and that the short concluding paragraph dismissed these problematic concepts too easily. The final paragraph is worth quoting in some detail because it is indicative of a writing style Rush employs elsewhere in the text. He states:
So whereas a retributive criminal law is theatrical and whereas a deterrent criminal law is pedagogic, so a rehabilitative criminal law is prosaic. Whereas retribution works excessively and deterrence works wholesale, so rehabilitation administers itself retail - in our everyday lives.
This paragraph is more theatrical than pedagogical. Instead of stating its points plainly, it uses the exclamatory conjunctions "so" and "whereas" to distinguish the first from subsequent points. Inadvertently (or so it seems to me) Rush thereby places particular stress on the "prose" and "style of administration" of rehabilitation.
The descriptions of retribution, deterrence and rehabilitation as theatrical, pedagogical and prosaic focus on different aspects of each term rendering them at best discontinuous and at worst incomparable.[1] This is a clever rhetorical device to engage the reader. However, I believe it is used at the expense of clarity. Also, the single descriptions are not always appropriate. Retribution is much more than "theatrical". Retribution can be linked to an unspoken desire to punish or to an implied assertion of authority.[2] This desire might be hidden in the cold, rational reasoning of Courts and prosecutors. It belies the easy theatricality of the vengeful public with their banners outside the courtroom. Retribution is also administered behind the closed doors of police cells or carried out in prisons through a rough code of justice among prisoners. There may be theatre in these forms of retribution but it is not of the extravagant type I envisaged in Rush's use of the term. Rush's sweeping description risks disregarding more prosaic forms of retribution.
The paragraph is an example of a loose grammatical style Rush employs elsewhere in his text. He does not always write in sentences[3], and often writes dramatically[4] and discursively.[5]
In the scheme of Rush's work these points of style and language are minor criticisms (if they are criticisms at all). I was enthralled by the first Chapter. Generally complex ideas were expressed clearly. It is because he successfully engaged my attention that I feel compelled to quibble with his analysis at all.
Whereas I initially feared Rush's work would be narrow and legalistic, after the first chapter I wondered whether too much was being asked of students new to the study of criminal law. In the preface, Rush states:
This companion is a book of questions addressed to those readers who are willing to confront the problems of criminal law and who do not at the same time demand obedience to technical solutions.
Can students be assumed to be readers of this calibre? Are students "readers willing to confront the problems of criminal law"? I for one would argue that if they are not, it is the role of their legal education to encourage them to become such readers. So it is left only to consider whether Rush's Criminal Law can be employed successfully for this task.
Chapters 2 to 14 focus on various areas of doctrine. Chapter 2 sets up the criminal law as a relationship between the laws of evidence, the law of procedure and the substantive law of crime. Evidence and procedure are discussed summarily in Chapter 2 and the following twelve chapters deal with substantive criminal law doctrine. The chapters discussing the substantive criminal law are more or less conventional. They progress from general principles of responsibility in Chapter 3 to specific application through the doctrines of criminal offences in Chapters 4 to 10. They progress from analysis of offences to an analysis of defences in Chapters 11 to 13. Finally, Chapter 14 discusses the "Doctrine of Attempts".
However, there are some novelties in the structure Rush employs in the text. First, I was interested in the decision to move from less serious to more serious crimes. Conventionally, crimes against the person are dealt with before property crime, and the progression is from the most serious to the least serious crimes. Rush inverts this progression. He discusses crimes of property before crimes against the person and he discusses theft and larceny before violent crimes of property, and assault and rape before homicide.
In most texts, the law of homicide is used to introduce the concepts of actus reus and mens rea. The nuances of voluntariness, intention and causation are explicable using easily distinguishable scenarios in which it is possible to agree generally that the conduct in question is wrong.[6] On the other hand, discussion of property requires an analysis of the origins of property before there can be any question of criminality. Rush uses such an analysis to good effect. He discusses the relationship between the level of complexity in societies and the level of abstraction in the concepts of larceny and theft. This analysis is in keeping with the premise Rush establishes in Chapter 1 that criminal law is a contextual, social phenomenon. Because the moral blameworthiness of homicide is rarely in question, it is not a useful tool for analysing the limits of criminality more generally.
I was interested that Rush does not discuss crimes against the person and crimes against property in two continuous sections. After discussing theft and larceny in Chapter 4, he turns in Chapter 5 and 6 to assault and rape. He then returns to violent property crimes in Chapter 7 which is followed by two chapters on homicide. From reading the text, I can glean no rationale for the discontinuity this creates.
I was disappointed that the text did not discuss drug offences or corporate crime. In different ways, the criminalisation of these activities has tested the boundaries of the criminal law. They involve important issues of control and the exercise of power. Given the powerful opening chapter, I expected that these controversial areas of the criminal law might receive a comprehensive treatment. I was also disappointed to find that the law of attempts was left to the final chapter, and was in no way integrated. The criminalisation of attempts also challenges the purposes of the criminal law emphasising prevention and deterrence over retribution. It has important implications for the authority of the State. Not only can it investigate and judge the consequence of the actions of citizens but it can investigate and judge their states of mind. The implications of the law on drug offences, corporate crime and the law of attempts could have been used to greater effect to extend the discussion of "Origins", "Purposes" and "Personality and Subjection" in Chapter 1.
Despite these structural concerns, the presentation of Chapters 2 to 14 was generally clear. The numerous headings acted as useful signposts to the text without hindering continuity. The use of special icons for "notes" and "questions" dotted throughout the text drew attention to relevant points and introduced pertinent tangential issues.
However, on occasions, the text was let down by obscure quotes and chapter and section headings. Rush uses quotes to introduce Chapters 4, 6 and 12 but not the others. All these quotes seem peripheral to the discussion that follows. Since most chapters are not introduced by quotes, it might have been better to incorporate the quotes into the text where relevant. Also, the titles to Chapters 8 and 9 were unnecessarily obscure.[7]. Two of the section headings in Chapter 14 were similarly opaque, revelling in double entendre and pun, but failing to elucidate the subject matter of the text.
In making this criticism I do not mean to dissuade the use of stylistic devices such as imaginative subject headings to engage the readers intention and to controvert the assumption that the study of criminal law can be categorised neatly under consummate headings. However, because the stylised headings were so vastly outnumbered by more conventional headings (which perhaps therefore "betray" the dogmatic prejudice that the subject of law is "substantive law"), and because the text discussed under them did seem to cover a discrete area of doctrine, their appearance seemed to me a bit odd or at least forlorn.
Rush's text has an intellectual rigour that reminded me very much of the excellent two-volume text Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales.[8] This latter text, being in two volumes and 1400 pages, is too long for a student text. Rush's work, on the other hand, is an appropriate length and of suitable construction for use as a textbook. It is well laid out, has pertinent questions at the end of each chapter and excellent lists of further readings. It is not heavily doctrinal dealing in principles rather than authorities. Although criminal law is codified in Western Australia, I will give serious consideration to prescribing Rush's Criminal Law as a text for my Criminal Law course next year.
Notes
[1] Theatricality and prose are perhaps the "means of administering" retributive and rehabilitative criminal law. Pedagogy might be thought to be the "purpose" of deterrence.
[2] See William Connolly's concept of "desire to punish" in Ethos of Pluralization, (Minnesota: University of Minnesota Press, 1996)
[3] See for example, p13, line 9, "So also with courts - within States, federally, nationally and internationally."
[4] See the above quoted paragraph.
[5] See for example the discussion of "Definitions". In deconstructing C.S. Kenny's eight potential definitions of crime, Rush does not set out the definitions in their original form but talks around them. I found this disconcerting. It was a credit to Rush that his points remained clear and compelling.
[6] There is rarely any question that the taking of another life is a wrongful act. In fact homicide is considered in most societies to be the most serious of crimes because of the sanctity which surrounds human life.
[7] Chapter 8, "Making a Killing" and Chapter 9, "A Mirror of Murder"; Section 9.2, "A short history of a long history"; Section 14.2, "Trying laws"; and Section 14.4, "So far away, yet so close".
[8] Brown, D, Farrier, D, Weisbrot, D (with assistance in revising Chapter 11 by Luke McNamara), Criminal Laws, 2nd edition, (Sydney, Federation Press, 1996). I note Rush acknowledges this work in the preface for "providing much-needed contexts to my understanding of Anglo-Australian criminal laws."