Abstract
The idea that criminalisation is predominantly motivated by rational responses to norm violations has been a familiar position within legal theory, one which has diverted attention away from some more irrational impulses which often drive it. In this paper I consider one set of impulses of this kind - law constructed as responses to what I term the abnormal - a complex social constant which, I argue, produces effects that are substantively distinct from those generated by negated norms. Tracing contemporary legal attitudes towards the abnormal from within premodern regulatory responses to the construct of the ‘monster’, I evaluate the role of scientific discourse in reconstituting the monstrous in terms of the more socially acceptable trope of abnormality. I examine the long standing role of abnormalities as a predictor for risk, especially within criminal justice - from the notorious Lombrosian project of correlating biological abnormalities with criminality through to contemporary programmes of criminal profiling and the search for correlations between brain abnormalities and criminality. Setting Foucaults account of the ‘human monster’ and its legal impacts beside Garlands criminology of the ‘other’ I then attempt to set out a more systematic ‘hermeneutics of the other’ in the form of a ‘teratology’ – a social parallel to the discipline within medical science which gives it its name. I argue that in making our teratologies transparent we clarify their often negative impacts upon the production of criminal law – in particular a kind of ‘monstrous doubling’ effect, where the anomalousness (seemingly) threatened by the abnormal becomes, in turn, legal anomaly. Not only do such effects subvert the rational management of harm into programmes of distorted or excessive law production. At their most extreme they can sometimes generate what Richard Ericsson has termed ‘counterlaw’ - laws against law, where abnormal circumstances seem to necessitate abnormal - that is, extra legal - responses. I conclude by suggesting that one contribution of a ‘teratological stance’ to any normative theory of criminalisation might be to refine our understanding of how law is structured in the face of imagined offence, rather than substantive wrongdoing.