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The Structures of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2011

Print ISBN-13: 9780199644315

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199644315.001.0001

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Abnormal Law: Teratology as a Logic of Criminalization

Abnormal Law: Teratology as a Logic of Criminalization

(p.157) 8 Abnormal Law: Teratology as a Logic of Criminalization
The Structures of the Criminal Law

M. R. McGuire

Oxford University Press

The idea that criminalization is predominantly motivated by rational responses to norm violations has been a familiar position within legal theory. This chapter considers one set of impulses of this kind — law constructed as responses to what the chapter terms the abnormal — a complex social constant which produces effects that are substantively distinct from those generated by negated norms. Tracing contemporary legal attitudes towards the abnormal from within premodern regulatory responses to the construct of the ‘monster’, the chapter evaluates the role of scientific discourse in reconstituting the monstrous in terms of the more socially acceptable trope of abnormality. It examines the long standing role of abnormalities as a predictor for risk, especially within criminal justice — from the notorious Lombrosian project of correlating biological abnormalities with criminality through to contemporary programmes of criminal profiling and the search for correlations between brain abnormalities and criminality. Setting Foucaults account of the ‘human monster’ and its legal impacts beside Garlands criminology of the ‘other’ the chapter attempts to set out a more systematic ‘hermeneutics of the other’ in the form of a ‘teratology’. It argues that in making our teratologies transparent we clarify their often negative impacts upon the production of criminal law — in particular a kind of ‘monstrous doubling’ effect, where the anomalousness (seemingly) threatened by the abnormal becomes, in turn, legal anomaly. Not only do such effects subvert the rational management of harm into programmes of distorted or excessive law production. At their most extreme they can sometimes generate ‘counterlaw’ responses. The chapter concludes by suggesting that one contribution of a ‘teratological stance’ to any normative theory of criminalization might be to refine our understanding of how law is structured in the face of imagined offence, rather than substantive wrongdoing.

Keywords:   rational responses, norm violations, legal theory, regulatory responses, monster, abnormality, Lombrosian project, criminality, legal anomaly

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