At the center of criminal legal doctrine is a contradiction still unacknowledged by influential theorists. Criminal law, criminal jurists and scholars have accepted and sometimes even counseled rape of a wife as a means of securing domestic order, while at the same time describing rape as the worst thing that can be done to a person short of murder. Rape has been condemned outright and absolutely; yet, at the same time, the highly qualified nature of the crime has been either tacitly accepted or openly endorsed. I call this ‘The Contradiction’ of criminal law. This chapter examines the nature of this faulty logic and how it has been obfuscated by mainstream scholars. It also considers the remarkable variety of ways in which feminists from law and adjacent disciplines have exposed these problems of impaired legal reasoning at the center of criminal law.
Addressing the fundamental anthropocentrism of law, the author argues that two influential families of thinkers have played a critical role in sustaining it: secular rationalists and conservative Christians. The influence of these thinkers has combined to engineer and sustain a set of public concerns about the fitting borders of legal personality that are essentially humanistic in the sense that they focus almost exclusively on the human species and the perceived limits of its interests. The author's reluctant conclusion is that, notwithstanding the eloquence, intelligence and power of Stone's arguments, he was unable to attract the attention of a critical mass of the influential, let alone persuade them to set aside their own human concerns. Law continues to exclude the non-human from its community of persons.