Fantasm of Permanence and The Monologic of Empire

In order to understand criminal legislation, one needs to refocus from criminal legislation to its most modern form, the code ─ by turning one's historical attention to the significance of criminal codes, thereby reconnecting the analysis of law to the analysis of the state, jurisprudence to politics. Therefore, particular attention needs to be provided to two analytic distinctions ─ between private and public law, and between criminal and civil law. Modern criminal law scholarship fails to recognize that its subject in large part no longer represents a species of law at all. The category mistake, in other words, transcends that of law and extends to the range of coercive methods available to the modern state. Insofar as criminal law has been transformed into a mode of regulation, it has been transformed into a species of police, rather than of law. Not only the distinction between public and private law remains unclear and unexplored in English Criminal Law scholarship, so does the definition of law and its differentiation from other modes of state coercion. It is no surprise, then, that the greatest successes of English criminal codification would be criminal codes drafted by wise Englishmen (some of whom were experts in criminal law [Stephen], others not [Macaulay]) for various colonies, Canada and India in particular.