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Space, time and function: intersecting principles of responsibility across the terrain of criminal justice

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Abstract

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance.

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Notes

  1. For an elaboration of this argument in relation to the law of theft, deception and attempts, see Lacey, Wells, and Quick (2003, Chapter 4.II.a-d).

  2. I am in agreement with writers like Duff, Horder and Tadros that there is a distinction to be drawn between attributions of responsibility in specific cases and a broader judgment that a subject lacks in general the capacities which underpin responsibility. These latter subjects are properly regarded as exempt from criminal responsibility, and this is the most natural way to understand ‘defences’ such as insanity or infancy. Space however precludes me from pursuing this issue in more detail. See Duff (1986), Tadros (2005, Chapter 5), Horder (1996), Lacey (2000).

  3. (1976) AC 182.

  4. (1998) 4 All ER 265.

  5. See Gardner (1998), Kahan and Nussabaum (1996), Lacey (2000) and essays by Kyron Huigens, (‘Homicide in Aretaic Terms’) Kenneth W. Simons (‘Does Punishment for “Culpable Indifference” Simply Punish for Bad Character?”) and V. F. Nourse (‘Hearts and Minds’) in a special issue on The New Culpability: Motive, Character and Emotion in Criminal Law (ed. Guyora Binder) (2002) 6 Buffalo Criminal Law Review at pp. 97, 219, 361; and also see Huigens (1995) and Michaels (1998). On character and responsibility more generally, see Schoeman (1987), Gatens and Lloyd (1999) Chapters 3 and 6 (on Spinoza and responsibility), Arenella (1990), Williams (1981)

  6. For criticism of the normative recommendations of various character theories see Duff (1993, 2002) and Yankah (2004).

  7. See Lacey (1991). Victor Tadros also sees a place for capacity principles within his primarily character-based theory: Criminal Responsibility op cit and in particular Chapters 2, 5 & 12. In his view, however, the moral force of the capacity principle is itself parasitic on the more basic sense in which criminal law expresses a judgment of the character displayed in an agent’s conduct. Nonetheless, I think it could be argued that a vision of humans as, under normal conditions of agency, in some sense capacity-responsible for their beliefs, desires and dispositions does underlie Tadros’s account.

  8. For Tadros, actions which are ‘out of character’ may nevertheless be objects of responsibility, on the basis that D showed a culpable failure to resist, hence accepting, a vicious disposition.

  9. See Bayles (1982), Lacey (1988), Tadros (2005) and also footnote 5.

  10. Tadros (2005, pp 23–43). An agent acts, on Tadros’s view, qua agent, when he or she is motivated by reasons which cohere with his or her more general set of values and dispositions.

  11. Tadros (2005, Chapter 13). On the lack of any convincing account of where we draw the boundary between criminal and non-criminal conduct, see Katz (2002).

  12. R v Caldwell (1981) 73 Criminal Appeal Reports 13.

  13. Duff, ibid., pp.155–173. The gradual transformation of the presumption that a defendant intends the natural consequences of his or her actions from legal to merely evidential status through the course of the nineteenth and early twentieth centuries might be regarded as a further example of a shifting practice of character-based responsibilisation at the level of legal doctrine: see Lacey (2001a).

  14. R v Morgan (1976) AC 182: see Lacey et al. (2003, Chapter 5.II.b.iii and iv).

  15. R v Satnam (1984) 78 Criminal Appeal Reports 149.

  16. Criminal Justice Act 2003 ss. 98–101.

  17. R v Kingston (1994) 3 WLR 519.

  18. For a summary of the evidence in the UK, see Phillips and Bowling (2002, p. 579). See also Field and Roberts (2002), Hillyard, Pantazis, Tombs, and Gordon (2004), Home Office (2000), Lustgarten (2002) and MacPherson Report (1999).

  19. See the essays by Elizabeth Kolsky, Wendy Schneider and Martin Wiener in Dubber and Farmer (forthcoming).

  20. See for example Sex Offenders Act 1997, Sexual Offences Act 2003.

  21. See for example the Anti-Terrorism, Crime and Security Act 2001, whose nationality based distinctions were later found by the House of Lords to be in violation of the Human Rights Act: A and others v Secretary of State for the Home Department [2004] UKHL 5

  22. As quoted in The New York Times Monday June 13th 2005 p. A14.

  23. Crime and Disorder Act 1998; www.crimereduction.gov.uk/asbos5.htm; see Tim Newburn, ‘Young People, Crime and Youth Justice’, in Maguire et al. (ed.) The Oxford Handbook of Criminology pp. 531–578 at pp. 563–564; and Ken Pease, ‘Crime Reduction’, in Maguire et al. pp. 947–979 at pp. 969–970; Ramsay (2004).

  24. Dubber (2005). In Part III of his book, Dubber moves towards the development of a theory of ‘substantive due process’ which might have the capacity to confine and rationalize the police power within a framework appropriate to a modern constitutional democracy.

  25. For a persuasive analysis of the dangers of disguising the inevitably evaluative dimension of responsibility attributions, see Nourse (2002).

  26. See Zedner, ‘Victims’, in Maguire, Morgan and Reiner (eds.) The Oxford Handbook of Criminology op. cit.

  27. John Major, in a speech delivered in 1993.

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  1. Law Department, London School of Economics, Houghton Street, London, WC 2A 2AE, UK

    Nicola Lacey

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Correspondence to Nicola Lacey.

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Professor of Criminal Law and Legal Theory, London School of Economics. Parts of this paper are adapted from my ‘Character, Capacity and Outcome: Towards a framework for assessing the shifting pattern of criminal responsibility in modern English law’, in Markus Dubber and Lindsay Farmer (eds.) Modern Histories of Crime and Punishment (forthcoming, Stanford University Press). My thanks to the participants in the workshop ‘Modern Histories of Crime and Punishment’ held at the Buffalo Criminal Law Center and Baldy Center for Law and Social Policy in June 2005 and in the symposium on ‘Philosophy and the Criminal Law’ held at the British Academy in October 2005 for their constructive feedback; and in particular to Markus Dubber, Lindsay Farmer, Alan Norrie and Victor Tadros for comments and discussion.

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Lacey, N. Space, time and function: intersecting principles of responsibility across the terrain of criminal justice. Criminal Law, Philosophy 1, 233–250 (2007). https://doi.org/10.1007/s11572-006-9025-7

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