Civil order, markets, and the intelligibility of the criminal law

Abstract

This article explores the meaning of the term ‘civil order’ by asking what it means to claim that criminal law is only ‘intelligible’ from the perspective of civil order. In Part II, I examine different possible meanings of the term intelligibility. In Part III, I go on to look at ways of understanding the term ‘civil order,’ arguing that it must be seen primarily as a historically situated question – that is to say, both the question of what amounts to order, and conceptions of civility, depend on particular historical contexts. I illustrate this point by looking at how order was conceived of as a specific kind of problem in modernity and how this has shaped the understandings of the scope and the function of the criminal law. In Part IV, I look at a neglected dimension of this modern understanding of civil order by looking at the way that the relation between the market and the criminal law – that is to say, between a sphere of social life ordered by contract or civil law and those spheres ordered by criminal law – has been conceived of in modernity. I conclude that this distinction between market and civil society underpins the thinking about the proper scope of the criminal law but that, if we are properly to understand the role of criminal law in securing civil order, it is necessary to reflect not only on the civility of civil order but also on how we understand the scope of civil order in modern society.