The Characters of Criminal Law

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?

Sexual Consent without Passivity

In “The Opposite of Rape,” John Gardner defends two central claims. The first claim is that consent is not necessary for morally permissible sex and the second claim is that giving consent pride of place in sexual offence policy has the unwelcome consequence of reinforcing sexist ideology. Gardner’s arguments for both claims rely on what I call the “Passive Consent Thesis” which is the thesis that “if A gives consent to B in a sexual encounter, then A is passive and B is active in the encounter.” Gardner argues that if sex that is good in a key respect, then they engage in joint sexual activity that is free of this asymmetry of agency. Building on work by Karamvir Chadha, I respond that even if someone is passive with respect to the action to which they consent, they can still be active with respect to a different action that they perform themselves. Consequently, I maintain that two people can give each other consent while engaging in joint sexual activity.

The Justification of Property Rights

This chapter concerns the justification of property rights, and makes the argument that we do have ‘natural’ or ‘pre-legal’ rights to the use of things, a kind of usufructory right. The Kantian theory of property rights, most thoroughly and convincingly developed by Arthur Ripstein is discussed in detail. Various aspects of the theory are criticized, in particular Kant’s view of right to appropriate unowned things and his famous ‘assurance’ argument. In explaining his differences with the Kantian theory, the author expounds what has been called an ‘instrumentalist’ view of law in general and property law in particular, a view most closely associated with the private law writings of John Gardner.

Early Explorers of the Eastern Desert and the History of Monasticism: Sir John Gardner Wilkinson and James Burton

This paper analyses the personal documents of two early explorers of the Eastern Desert who recorded several monastic monuments in the area: Sir John Gardner Wilkinson and James Burton. We argue that these papers are an important source for the history of early monasticism as they record many of the monuments now destroyed, severely damaged, or forgotten. It is also suggested that Burton preceded Wilkinson in visiting and documenting some of these archaeological sites, even though Wilkinson was the first to publish them.