Abstract
This essay explores what we might mean by good and evil, and argues that these terms remain salient for a critical, socio-historical, understanding of criminal law. It draws upon a meta-ethics of freedom and solidarity to explain what good means in recent mercy killing cases in England and Wales, and what evil means in Arendt’s phrase, the ‘banality of evil’.
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Notes
An example given below concerns the interaction between the formalism in core legal concepts and jury discretion in mercy killing cases. Both formal law and the discretion it invokes are constitutive parts of the legal whole. I think it important to draw attention to the structuring of that whole by core legal concepts, without in any way asserting that they represent the whole story. It is important to take a socio-legal understanding into the territory that is often seen as purely legal, but there should be no intention to substitute an understanding of the legal core for the broad contextual operation of the law that socio-legal studies have always involved.
From the references to Aristotle and Marx, as well as from discussion of negative and positive liberty, it will be understood that what is being argued for is not new in terms of its discrete elements. Rather, it is the syncretic and dialectical progression to the most enriched forms of freedom from the lesser ones that is important.
See Norrie 1991; and the development of the argument about philosophy in Norrie 2000, and about law in Norrie 2001. My point is that a formalistic law as described sets the general terms in which the legal system operates, but it inevitably entrains counter-movements to compensate for this within its own system. For example, it works through formal rules but also through counter-applications of discretion which are required to mediate the formal rules. These counter-applications are themselves part of law too. Legal systems are as much constituted by institutional operationalisations as by formal rules so that when we look at law as a whole, we must look at its central forms but also its practices, processes, institutions, and how all these interact within legal wholes. My aim is to show how central forms of legal abstraction at the core of the formal rules structure legal systems in practice and as a whole.
It is important to understand that the interaction between meta-ethical principles and any actual moral situation is not one that can be mapped through clear analytical propositions. It is more a question as to whether the former is ingredient in the latter and so can be read into and out of it. Different cases have their own particularity, implications and gradations. While elements of freedom, well-being and flourishing can be seen in the case of Mrs. Gilderdale and her daughter, this does not stop it being tragic and full of loss.
References
Arendt, H 1964 Eichmann in Jerusalem London: Penguin
Arendt, H 1968 Origins of Totalitarianism London: Harcourt Brace
Bernstein, R 2002 Radical Evil Cambridge: Polity
Bhaskar, R 1993 Dialectic: the Pulse of Freedom London: Verso
Cesarani, D 2004 Eichmann: His Life and Crimes London: Vintage
Collier, A 1999 Being and Worth London: Routledge
Dews, P 2008 The Idea of Evil Oxford: Blackwell
Eagleton, T 2010 On Evil Yale: Yale University Press
Kohler, L and H Saner 1992 Hannah Arendt Karl Jaspers Correspondence 1926–1969 London: Harcourt Brace
Norrie, A 1991 Law, Ideology and Punishment Dordrecht: Kluwer
Norrie, A 2000 Punishment, Responsibility and Justice Oxford: Oxford University Press
Norrie, A 2001 Crime, Reason and History Cambridge: Cambridge University Press
Norrie, A 2006 Law and the Beautiful Soul London: Glass House/Routledge
Norrie, A 2008 ‘Justice on the Slaughter Bench: the Problem of War Guilt in Arendt and Jaspers’ New Criminal Law Review 11, 187–231
Norrie, A 2010 Dialectic and Difference: Dialectical Critical Realism and the Grounds of Justice London: Routledge
Norrie, A 2011 ‘Legal Form and Moral Judgment: Euthanasia and Assisted Suicide’ in A Duff, L Farmer, S Marshall and V Tadros, Structures of Criminal Law Oxford: Oxford University Press
Norrie, A 2013 ‘Law, Ethics and Socio-history: the Case of Freedom’ in D.Feenan, Exploring the ‘Socio’ of Socio-Legal Studies London: Palgrave MacMillan