Historical differentiation, moral judgment and the modern criminal law
Nicola Lacey proposes an analysis of criminal law which links principles of responsibility to their historical development. Starting from George Fletcher’s account of three historical patterns of liability (Fletcher, 1978), Lacey develops a more complex differentiation, and at the same time foregrounds the historical conditions for the emergence of different conceptions of responsibility.1
In thinking about these, Lacey’s focus is on the relationship between capacity and character-based conceptions. Capacity-based conceptions rely upon either the identification of free choices on the basis of psychological states of mind—reason, intention, foresight, will formation—or the existence of ideas of fair opportunity to conform one’s behaviour to law. As for character responsibility, Lacey identifies ‘broad’ and ‘cautious’ forms, and she suggests, drawing on Victor Tadros’s work (2005), that character-based conceptions also inhere within the modern criminal law wherever broad-based conceptions of reasonableness operate in the law. Where reasonableness is at issue, this permits judges and juries to link conduct to the kind of person that the defendant is, and to evaluate his or her actions according to a broader view of their settled dispositions, their habitual beliefs, desires, emotions and values.
Alongside these four forms of capacity and character based responsibility, there operates a fifth form, outcome based responsibility. This is the sense that to be associated with a particular outcome, whether one intended it or not, whether one displayed a good or bad character with regard to it, is relevant to some sense of responsibility for it. Outcome responsibility is most obvious with regard to offences of strict liability, where the state adopts the view that certain kinds of activities simply need to be regulated, and that bad outcomes should lead to certain kinds of regulation and punishment. Here, however, we are in the realm of the so-called ‘regulatory offence’, but there are also some ‘real’ criminal offences where outcomes specify responsibilities. Examples would be ‘constructive’ forms of liability in the law of murder (under DPP v Smith2 and the old pre 1967 law), manslaughter (committed by an unlawful act), and assaults which do not require full mens rea under ss 20 and 47 of the Offences Against the Person Act 1861. In what follows, I will reflect on this fifth form of liability, eventually in a slightly different way, in the two areas with which Lacey deals: the historical shaping of responsibility, and the relationship between different forms of responsibility in the criminal law. I shall suggest that outcomes play an important role behind the scenes in the way that capacity and character evaluations are allocated. First, however, it is important to consider the historical perspective which, like Lacey, I believe to be significant to the way that issues of legal responsibility are shaped.
Historical change and the structuring of criminal liability
One question that is raised by her analysis of criminal responsibility concerns what determines the overall shape of the criminal law. If one takes a philosophical analysis, then one would say that the different forms of responsibility sediment different kinds of values, and the overall shape of the law depends on the intermingling of those values in different periods. A mild historicism might enter the picture at this point, but the main preoccupation would be on identifying the different values and arguing prescriptively for different forms of balance between them according to the theorist’s moral and political standpoint. History only plays a minor role, perhaps of comparing one period with another when there was, say, less or more capacity-based subjectivism in the law. What then does an historical view add to the picture? For Lacey, it involves ‘a socio-historical analysis of [shifts in forms of responsibility in terms of] their broader causes or roots in culture, institutional structure or political economy’,3 and in particular an analysis that reveals ideas of individual responsibility ‘as responses to structural problems of co-ordination and legitimation faced by systems of criminal law’.4 In my view, this approach gives a certain primacy in the analysis to the subjective, capacity based approach in its narrower psychologistic or cognitivist form (orthodox subjectivism), for it emphasises the significance of the move in the late eighteenth and early nineteenth century to a new mode of legitimation in which social ordering through law could appear as universal in its form5 and ‘relatively independent of any evaluation of the relevant conduct’.6 Of course, the historical development is never simple, and always incorporates many different facets, but underlying all the twists and turns of history, there is this basic sense of a new liberal mode of legitimation based upon a ‘thin’ conception of responsibility, on the possibility of identifying ‘factual’ psychological mental states in all persons regardless of social class and status.7
A detailed analysis along these lines has recently been developed by Peter Ramsay, drawing upon T.H.Marshall’s vision of the different aspects of modern citizenship.8 Ramsay points out that an historical analysis of criminal responsibility emphasising the structural position and significance of the capacity approach from the late eighteenth and early nineteenth century has to confront two challenges. First, it has to explain the time lag between the capacity approach’s introduction in the early period and its full flowering, in the post 1945 world, in the works of H.L.A. Hart, Glanville Williams and Smith and Hogan. If the history is so important, why was there this apparent lack of historical continuity? Second, it has to explain the fact that a major form of liability that came into play from the late nineteenth century onwards involved not a capacity approach at all, but in many ways its opposite, a strict liability approach pertaining to an increasing number of regulatory or welfare offences.
Ramsay’s response to these two problems is to separate out the differential impact of the three conceptions of citizenship identified by Marshall as emerging over the period. The earliest form of modern individual citizenship is the civil form, which involves rights necessary for individual freedom. This, linked with individual property rights, comes into existence in England in the eighteenth century, and provides a foundation for thinking about criminal responsibility in individualist terms from that period on. Such a conception of citizenship is a necessary, but not sufficient condition for a criminal law to be based in its general part on the capacity model. For this to happen, political citizenship is also necessary, which means a commitment not just to individual rights and liberties but also to a universal order in which every individual has the right to participate in political decision-making. Once that is introduced, the basic form of the responsible individual introduced by a civil conception of citizenship, has to be generalised to all relevant areas of social life, including criminal law. Thus it is that the subjectivist, capacity based approach to criminal responsibility which had been introduced in reform documents in the first half of the nineteenth century only came to full fruition in the second half of the twentieth century, after a government had come to power committed to a radical opening up of channels of political citizenship in the wake of the second world war. Finally, the third form of citizenship, social citizenship, is introduced from the late nineteenth century onwards and has the effect of introducing standards of social and economic welfare across a range of aspects of life. The effect of social citizenship is to produce those forms of regulation that generate alternatives to capacity-based approaches, and which focus more on outcomes than on fault. The growth of regulatory offences is then to be explained according to this rise of the third form of citizenship, which, slotted in alongside the first two, provides for the juxtaposition of two rather different forms of legal regulation in modern society, one outcome/ strict liability, the other capacity based.
I find this deployment of Marshall’s three forms of citizenship convincing, though it does not perhaps fully explain why the 1950s to the 1970s should have represented a high point in the capacity-based orthodox subjectivist project promoted by Hart, Williams and Smith and Hogan. Why was this in particular the time of these ideas’ dominance when universal political citizenship has been around for a longer time period? Was it just the radicalism of the post war government? My suggestion is that this was the period in which the three ideas of citizenship, civil, political and social, all came together, and that while a social conception did not in itself shape the orthodox subjectivist approach, it did help drive politically a movement to put it into practice. Orthodox subjectivism is itself shaped by the civil commitment to personal freedom and the political commitment that this should be universalised. What the social commitment did, however, in pushing beyond those kinds of freedoms, for people who were in practice not able to use them, was to give fresh impetus to the demand that civil and political freedoms should be actualised in reality. While individualistic freedoms were not enough, they were a necessary component of the good society that would be realised by the introduction of social welfare measures. Thus the poor not only required welfare benefits, they also needed free access to legal services to defend themselves before the law. The universalisation of legal freedoms invoked by political citizenship would have to be actualised fully in any world in which social citizenship also played a significant part. Pushing beyond the civil and political, social citizenship of necessity included implementation of these other, in a sense lesser, forms.
I think this conjoining of citizenship logics becomes important when we consider the final section of Lacey’s paper, where she considers current developments in the law away from the orthodox subjectivist standpoint, and in particular the increasing role of conceptions of character within the criminal law. These, she suggests, indicate a new move backwards, towards a status-based society and away from the more optimistic universalism of the orthodox subjectivist approach. Of course, in terms of Marshall’s approach to citizenship, nothing much has changed with regard to civil and political citizenship—we still endorse conceptions of individual freedom, though these are under increasing threat, and universal politics. What has changed has been the rolling back of social citizenship, and this may be a key development in terms of the revival of notions of character in, as Lacey puts it, ‘something akin to a new form of status society’. It is this new form of society that, she suggests, gives rise to an increasing emphasis on character forms of responsibility. Just as developing social citizenship pushed civil and political forms forward, so retrenching it leads to a decline in the abstract universalism and orthodox subjectivism they encompass. It is to the moral interplay between different forms of responsibility that I now turn.
Moral judgment, criminal law, historical structure
It is important not to be ham-fisted in the interpretation of legal concepts in terms of historical structures. Such structures are themselves multiply faceted, and so too are the legal concepts to which they give rise. For example, Lacey draws a link between Fletcher’s account of manifest criminality in the 18th century and a modern character-based approach to responsibility today, but it is important to pick out elements of difference as well as similarity. Fletcher’s account rests in part on the notion that the criminal act was manifestly one that could be identified as bad. To leave the market possessing goods unbought was to be a thief unless you could show good reason for so doing. Badness was on the face of the act without more ado, and this then spread by inference to the actor who, in a status society, was judged according to his position, previous actions and so on (i.e. his character). Acts of mercy were then based upon assertions of previous good character by those in positions of wealth and power with the ability to offer patronage.
The significant point here is that Fletcher starts from the criminal act and moves towards the issue of character. In the modern period, there have been criminal statuses that are in themselves comments about a person’s character, such as being an habitual prostitute or drunkard, or a suspected person. Otherwise, matters of character come in different ways, as a matter of evidence to structure the inference of guilt, in the process of punishment to affect the sentence of the court, or perhaps in new orders governing various forms of anti-social or dangerous behaviour. All these are significant returns to a notion of the importance of character, but they contain differences vis-à-vis the 18th century, and they are also rather different from the notion of the bad criminal act which character based theorists have promoted in recent times. For example, to say that a ‘couldn’t care less attitude’ in the law of recklessness is a culpable mental state caught by neither a capacity based form of subjectivism nor its objectivist opposite may be pointing at a form of character based responsibility, but it is a genuine effort to read the moral behaviour of the defendant (pace the 18th century) and to limit the significance of character to the act in question (pace e.g. current notions of dangerousness in sentencing today). While a return to character may be related to ideas of class and status in some ways, in others, for example where character theory reflects communitarian political philosophy, it could be related to attempts to be more, not less inclusive, than orthodox subjectivism permits.
I am making the simple point that we need to unpack the different ways in which character works in the modern criminal law in order to understand it better. However, this leads into another point about the importance of seeing that different forms of responsibility can be read into the same legal rule. Lacey speaks in this regard of ‘hybridity’.9 For example, if we take the reasonable person standard in the law of provocation, what role does it play, and in relation to which form of responsibility? On the one hand, it can be said to operate as a way of controlling evidentially the availability of the defence, by reminding a jury that not every claim of loss of self control is to be believed. Quite simply do they believe that the defendant did indeed lose his self control? Here the test acts as a way of checking the orthodox subjectivist requirement that the person be psychologically incapacitated by their loss of self control. On the other hand, however, if the requirement of reasonableness imports a more substantive judgment as to what the conditions are under which a person ought to retain their self control, then it becomes a way of thinking about whether loss of control is morally justified, and what kind of person the accused is, and is entitled to be, if she is to claim the defence. Thus reasonableness moves from being a rider to a capacity based test to being a qualifier for a character based test. However I think there is also a third element here, which concerns outcomes.
Put simply, there is a question that goes beyond capacity and character, and which reflects the sense that legal categories should deliver legitimate social outcomes. Thus there are some social contexts which should be able to generate certain defences and others which should not. Amongst those who might claim a provocation defence are abused women who kill their partners, men who kill partners who leave them, members of a family who kill a daughter for marrying outside her religion, men who kill in reaction to a perceived homosexual advance, addicts and mental depressives who kill because they have been provoked in different ways. Whilst much of this contextual substance can be read as leading to jury decisions about either the capacity or the character of the accused, there is also surely an irreducibly political point about the range of circumstances in which it is regarded as legitimate to determine a case as either provoked manslaughter or murder.10 Hence, there is a sense in which socio-political outcomes drive case decisions—not independently of character and capacity issues, but through them. Such issues mediate in order to achieve what is viewed as the right legal outcome.
It is important to see that the controversy between character and capacity approaches, which are both about how society judges an individual, relates to the broader question of how issues of responsibility are deployed to determine general social and political norms in instant cases, sometimes without anyone being fully aware this is happening. A good example is the various ways in which the criminal law deals with questions of euthanasia. There is no space to go into this in detail, but one could refer to the deployment of a ‘primary purpose’ rule in cases of doctors ‘easing the passing’ of terminally ill patients,11 or the (anomalous) deployment of defences in Re A (children)12 to avoid the capacity based claim that the doctors in that case had the intention to kill Mary, or the distinction between acts and omissions in decisions to let patients die.13 The first two approaches are the inverse of each other, in that ‘easing the passing’ cases rest on a denial of the law of intention that Re A (children) upholds. Re A (children), however, also pushes legal doctrine along by positing a form of the capacity/fair opportunity (or character?) based defence of necessity to murder in the ‘exceptional’ medical context. In the ‘easing the passing’ or the ‘letting die’ cases, or Re A (children), we see legal capacity (or character) based concepts being disrupted by—what? Is it that society essentially thinks that medical practitioners are ‘good guys’ who need to be protected from the result of a neutral seeming capacity-based approach by resort to character conceptions? Perhaps, but such a reductive argument rather misses the point. The character of individual doctors is not the main issue in these cases. Rather, it is the context of social and political values surrounding euthanasia that is in issue.
In our society, there is a serious conflict between those who think that it is crucial to uphold the sanctity of life at all costs (for a variety of reasons—religious, ‘slippery slope’), and those who think that sometimes quality of life issues override. Those who take the latter view, however, may think it important not to be entirely transparent about what is happening: permitting quality of life to win in certain cases should not become generalised to a norm in too many others. One should, relatively speaking, ‘keep it dark’, or operate by way of euphemism, and the criminal law is able to assist in this process by avoiding open statements that euthanasia is permitted by virtue of formal accounts of the law of intention and the nature of defences. The live political argument is resolved quietly, within the doctrines of the criminal law’s general part. In other words, questions of capacity and character based responsibility become a way of shading socio-political controversy. Outcome based conclusions in fact determine responsibility, but appear not to, via a distinction between primary and secondary purpose (‘easing the passing’), or between acts and omissions (‘letting die’), or the improbable availability of a necessity defence for murder (Re A (children)—‘medical necessity’). Thus the formal, neutral appearing categories of criminal responsibility, an historically generated ideology permitting the legitimation of a particular kind of society, do real moral and political work of a particular as well as a general kind, but obliquely. They ‘resolve’, or rather mediate, social and political issues with a measure of indirectness. They produce an outcome-oriented justice for the here-and-now through the manipulation of categories concerning individual fault.
‘Space, Time and Function: intersecting principles of responsibility across the terrain of criminal justice’, this issue DOI 10.1007/s11572-006-9025-7.
DPP v Smith  3 All ER 161.
Op. cit., this issue.
Op. cit., this issue.
The Victorian Criminal Law Commissioners were absolutely explicit about this: see the introductory comments to their 1843 Report, quoted in Norrie (2001a, p. 15).
Op. cit., this issue.
What I have described elsewhere as a Kantian ‘morality of form’: See Norrie (2000).
Op. cit., 2007.
This was, I have argued, the underlying message of Lord Hoffmann’s much maligned judgment in Morgan Smith  4 All ER 289 where the instruction to the jury to apply community standards to distinguish provocation cases is balanced against the otherwise thorough-going subjectivism of the judgement. See Norrie (2001b).
See e.g. R v Cox (1992) 12 BMLR 38; see also Arlidge (2001).
Re A (children)  4 All ER 961.
See e.g. Airedale NHS Trust v Bland  AC 789.
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