Graduate Workshop with David Garland (HS24)

HS 2024, 25 & 26 September 2024
Prof Dr David Garland/ Prof Dr Sarah Summers/ Prof Dr Marc Thommen

Concept
What is it that we are doing when we are theorising about criminal law and justice? This question gives rise, as Antony Duff noted in a seminal piece 20 years ago, to questions both about the types of theory at issue and about the conception of the criminal law which lies at the heart of these theories. ‘Should theorists aspire’, he asks, ‘to an a priori—ahistorical, a-geographical, a-contextual—theory of “the criminal law” as such: to, for instance, an account of the concept of criminal law, or of the metaphysical character of criminal law, or of the proper principles and aims of criminal law, that applies to all systems of criminal law whenever and wherever they exist? Or should we aspire only, more modestly, to an account of criminal law as it is or should be in some more local time and place (and if so, just how local must our account be)?’ (Duff, 2005, p. 353). Such statements seem to draw attention to tension between universalist and relativist ambitions of theories of criminal law. Reluctance to engage with the conceptualisation of criminal law as an ‘institutional practice formed by historical contingencies’ might be related to worries that to ‘focus on a particular time or place represents some sort of unnecessary parochialism or relativism’ (Summers, 2022, p. 280). But as Lindsay Farmer has noted, recognition that in various periods ‘the form of the law can be linked to specific issues of civil order, to the form of the state, to ideas about individual agency and so on… should not be read as an invitation to relativism or moral vacuity’ (Farmer, 2016, p. 116). This seminar sets out to allow for consideration of the various ways of theorising about criminal law and justice—philosophical theorising, sociological theorising about the operation of criminal law and justice and historical theorising about the development of the criminal law and its institutions. It will pay particular attention to the importance of the relationship between analytical and normative work, to the ‘relationship between a theory and the phenomena that it seems to present, rationalise or justify’ (Lacey, 2020, 313).  In this sense, it subscribes to the notion that ‘grounding normative analysis within an empirical understanding of penal practice’ is ‘a fundamental requirement of serious, critical work’ (Garland, 2018, p. 154).

Participants
The seminar is designed in the first instance for the PhD students of the Criminal Law Group at the University of Zurich. In addition, the organisers will invite selected PhD students studying abroad who are affiliated with the Criminal Law Group and from other Swiss Universities, with a view to fostering dialogue between young researchers in the field.

Format
The seminar will begin with an overview of the subject. Each student will give a short presentation on their PhD (max 20 minutes), which will be followed by discussion. The students will explain their theoretical approach and the vision of criminal law/ justice in their PhD. The seminar (6 ECTS) will take place on 25 September 2024, 10.00 – 18:00 (lunch will be provided) and 26th September 2024, 13:00 until 18:00. Details about the workshop dinner(s) will follow.

References
Duff, RA, ‘Theorizing Criminal Law: a 25th Anniversary Essay’, (2005) 25 OJLS 353-367.
Farmer, L, Making the Modern Criminal Law: Criminalization and Civil Order, Oxford, OUP, 2016.
Garland, D, The Culture of Control: Crime and Social Order in Contemporary Society, New York, OUP, 2001.
Garland, D, ‘The Rule of Law, Representational Struggles, and the Will to Punish’, in C Kutz (ed), The Will to Punish, New York, OUP, 2018, 154-167.
Lacey, N, ‘Approaching or Rethinking the Realm of Criminal Law’, (2020) Criminal Law and Philosophy 307-318.
Summers, S, ‘Trials and Punishment in the Rule of Law: The Influence of the ECHR on Criminal Law and Process’ (2022) ZSR 276-354.