Divergent opinions about criminalization are a pervasive feature of modern political and scholarly discourse. Spirited debates about drug crimes, sex work, and mass incarceration are just a few examples of the many situations in which legislators and academics have to grapple with difficult questions regarding the proper scope of the criminal law. These discussions typically revolve around moral disagreements about certain types of behaviour, normative disputes over the purposes of criminal punishment, and/or political arguments regarding the proper role of the state vis-a-vis its citizens. (1)
In Making The Modern Criminal Law: Criminalization and Civil Order, Lindsay Farmer attempts to spark a different sort of conversation, so as to reorient the criminalization debate towards an institutional analysis of criminal law. According to Farmer, the question of what should and should not be criminalized cannot be answered without appreciating the aims and purposes of criminal law as a distinct social institution. As part of this endeavour, she advocates for a historical perspective that--according to her--is increasingly necessary in a field that is "turning inwards" and is overly dominated by moral and political philosophy. (2) Farmer unpacks and rationalizes our current understanding of the scope of the criminal law by detailing the history of criminalization and examining the institutional conditions responsible for criminalization's emergence as a prominent topic in contemporary criminal law scholarship. In doing so, she provides a coherent model for understanding the present state of the criminal law, offers valuable insight into the history of criminalization, and lays out a persuasive normative theory for framing future discussions on the topic.
Farmer's book is divided into three parts. The first section addresses her institutional theory of criminal law. Farmer begins this discussion by critiquing existing theories of criminalization. She canvasses a range of contemporary scholarship and categorizes them into two strands of thought: theories that focus on "questions of harm and harm reduction or prevention" and theories that are centred around "questions of wrongdoing and retribution". (3)
Farmer argues that both theories suffer from similar flaws. First, they tend to define the scope of the criminal law in terms of "some combination of the rights and interests which are to be protected and the identification of harms or wrongs... to those rights and interests". (4) Since these rights and interests are defined independently of the law, criminal law comes to be seen as a means of protecting private rights. (5) As a result of this normative starting point, these theories generally struggle to provide justifications for protecting collective interests. (6) Second, Farmer argues that most contemporary theories, including the two above, pay insufficient attention to the distinctive character and aims of the criminal law. (7) By focusing too narrowly on notions of harm, deterrence, and/or retribution, these theories fail to specify why the criminal law in particular ought be employed in response to any given conduct. (8)
Farmer attempts to avoid these shortcomings by articulating a purposive, institutional conceptualization of the criminal law. She adopts and adapts Neil MacCormick's theory of institutionalization in order to argue that a proper understanding of criminalization requires knowledge of the values and ends to which the criminal law is oriented. (9) According to Farmer, being "criminal" is neither a quality of conduct nor of activity itself. (10) Rather, in order to label something as "criminal", one must make reference to the aims of the criminal law as a distinct social institution," and to the norms that become institutionalized over time in "particular forms, agencies and rules of law". (12) Furthermore, Farmer argues that abstract moral values are not the source or foundation of the criminal law, and therefore cannot be a useful compass in determining its scope. Instead, the criminal law should be based upon certain "irreducible features of law as a mode of governance" (for example, the rule of law, or legality) and upon an underlying purpose of securing civil order. (13)
Farmer expands on the link between the criminal law and civil order in Chapter Two, contending that the principal aim of the criminal law is to secure civil order. The securing of civil order involves more than enabling a transition from war to peace--it also requires maintaining a particular type of order, one in which institutions (as opposed to informal social understandings and norms) play a central role in its sustenance. (14) On this view, the development of the criminal law is one way in which "the state realigns all other forms of authority within its jurisdiction, changing the conditions under which, and the mechanisms through which, trust and social order can be secured." (15)
Additionally, Farmer identifies a link between the criminal law and broader government projects of establishing "civilization" (a society that is organized according to certain 'civilized' standards) and "civility" (that which engenders modes of conduct that help maintain stability and co-operation). (16) As part of this argument, Farmer rejects the theory that the criminal law is a means by which the state co-opts and monopolizes...