Criminal Enterprise Freewheelin'

Book cover

CRIMINAL ENTERPRISE 

THE FREEWHEELIN’ VERSION

 

ORIGINALLY POSTED AS A WEB PAGE IN 2008  

Some reflections on the method and process of carrying out research  -  learning how to trust intuition, sudden Manhattans of the mind, and how to play a good riff.

 

In thinking about how we actually go about the business of research in a field such as law and legal theory, it is interesting and useful to ask to what extent all of this activity is planned (and then goes to plan) and to what extent it is haphazard and intuitive. Current orthodoxy in research training of course emphasises the importance of the plan, and of defined objectives and outcomes. Certainly, if you are taking your begging bowl around in search of financial support, you are unlikely to get very far without demonstrating such clear forward planning. But the unexpected and surprising should be factored into the plan, and in the event may make the whole experience so much more enjoyable. Much naturally depends on the subject-matter of the research and the personality and temperament of the researcher. But there are virtues in both a plan and an adventure. 

So with what eventually emerged as Criminal Enterprise: Individuals, organisations and responsibility (Willan Publishing, 2008). With this project I began with a strongly conceived idea of a problem. There was the undeniable fact that organisations of different kinds are significant in our contemporary society. How does this affect our philosophical and legal ideas regarding the allocation of responsibility for human action ? Should we think in terms of organisations, such as States and corporations, replacing human beings as legal actors, or how should we judge human action which occurs within a significant organisational framework ? The big problems were clearly there to be addressed and the challenge was to articulate these issues in a clear-headed and productive fashion, but also to work out a feasible method for their investigation within a limited period of time.

That is where the plan versus intuition struggle comes into the picture. A sensible plan may require an estimated ten years of work, but practically, these days for many of us, that’s not feasible. Instead, you may have to hope for the ‘sudden Manhattan of the mind’ (the promising but untested idea which comes ‘out of nowhere’), take a leap of faith and go with it. Intuition. My intuition was that, once I had done over the theory (played the riffs, in Jules Coleman’s words*– theory of agency, theory of responsibility, in this case), I could test it out in three main situations. There, then, was the core of the study : the business conspiracy, delinquency in governance, and the crime organisation. For some people, this was clearly a perplexing selection. What did these three phenomena have in common to justify their joint treatment in this way ? What kind of argument or conclusion was going to emerge form such a curious menu ?

I was more confident because I had done some of the groundwork in earlier research, and I had some tentative but not as yet fully articulated ideas. Fortunately, the intuition did take some more definite shape as I sifted the material more carefully. Then it struck me that, in these three different contexts, there was an increasingly significant emergent idea of participation in criminal enterprise. The European Courts were applying it to companies involved in business cartels. The ICTY was using it in relation to Slobodan Milosevic. The British Government was talking about offences of membership of criminal organisations. Complicity, rather than immediate and direct offending, was assuming greater significance in criminal jurisprudence. And this, I perceived, was, at least in part, a response to the puzzle of how to deal with individuals and organisations together. So, we have the concept of the criminal enterprise. But we still tie that to an idea of individual involvement.

OK – nothing completely new in all of this. But as Jules Coleman would put the matter, playing those riffs in an unusual way can show us the familiar in an unusual new light. 

 

* Jules Coleman, Professor of Jurisprudence and Philosophy at the Law School and Department of Philosophy at Yale University, wrote, in The Practice of Principle : In Defence of a Pragmatic Approach to Legal Theory (Oxford University Press, 2001), pp ix – x :

 The legal academy puzzles and troubles me because so many people riff randomly without understanding the foundation of the disciplines they draw upon. To quote one of my favourite rock singers, Graham Parker, “they make a lot of noise, but they got nothing to say”. Real philosophers not only learn the history of their discipline; they internalize it. They are not embarrassed by the fact there is an important sense in which nothing is new in philosophy. They are not embarrassed working or reworking familiar themes …. Good philosophy is like good blues. Great blues players first make it clear to us that they are playing a blues – the references to the familiar are all there, the chord progression is outlined – then they go off, play around and through the familiar, connect the dots in unusual, sometimes awe-inspiring ways, then bring us back to the familiar again, thus deepening our understanding and showing us the extraordinary possibilities inherent in what we already know. In this way they expand the form while all the time working within it.