Criminal Law: Thinking about Criminal Law from a Trial Perspective

Abstract

Although it is necessarily a rough-and-ready distinction, research and scholarship in socio-legal studies typically distinguishes itself from its criminological cousins by focusing on civil and public law. While there are shared concerns (the legal enforcement process, the lived experience of participants and stakeholders, the resolution of disputes, policy implementation issues, regulation etc.), it is probably fair to say that many if not most scholars who identify as ‘socio-legal’ would not consider themselves to be criminologists (and vice versa). This distinction is not, in itself, significant. It does, however, raise questions as to what might constitute a socio-legal approach to the study of criminal law that wasn’t simply another name for a ‘criminal justice’ approach, and caused me difficulties when it came to thinking about the focus for this chapter. One option was to provide a critical survey of the literature on the use of empirical research in Criminal Law courses, but that (I soon found) would not only have made for an extremely short contribution, it would not have been particularly useful. Another would have been a more general and speculative piece about how socio-legal studies might inform the curriculum, but this too seemed fraught with difficulties — precisely because I was conscious that this would simply end up arguing for greater use of the excellent criminal justice texts and research that already exist. Instead, it seemed more fruitful to focus on the legal and pedagogical expertise of those who typically teach criminal law, and of the expectations and interests of those who are studying it, and to suggest one specific way in which we might bring the lived experience of criminal law into the classroom. That is what this chapter seeks to do.

… trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives. Patrick Devlin (1956, p. 164)