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REVIEW ARTICLE
Criminal Law and Ethics: Beyond Normative Assertion
and its Critique
Alan Norrie?
Nicola Lacey, In Search of Criminal Responsibility, Oxford: Oxford University Press, 2016, 256pp, hb �.00 and Lindsay Farmer, Making the
Modern Criminal Law, Oxford: Oxford University Press, 2016, 352pp,
hb �.00.
In the case of guilt, the internalised figure is a victim or an enforcer . . . [A]t
the most primitive level, the attitude of the internalised figure is anger, while the
reaction of the subject is fear . . . From this primitive basis, it is possible . . . to
develop the model to allow for reactions that are progressively more structured by
social, ethical, or moral notions.1
To the extent that our ideas about legal responsibility are shaped by [the] ideal
[of self-control], they are governed by a certain political theory of freedom in the
modern state, not by a moral refinement of the very conception of responsibility.2
In this review essay,I consider the debate between critical and mainstream
theorists of modern criminal law and justice concerning the place of ethics
in the law. The essay has four main sections. In the first, I outline the critical
concern about the mainstream position on ethics, characterised as one of
normative assertion or a priorism. In the second and third, I discuss separately
the arguments of the two critical authors under review. In the fourth, I advance
a theoretical method that might move beyond the opposition between the two
sides. Here I draw on the work of Bernard Williams in his Shame and Necessity,
a book often overlooked now by criminal lawyers. My overall focus is on
the relationship between history and morality as configured in criminal justice
thinking. My argument will be that we should think of the terrain of criminal
justice thinking as constituted by three levels: moral psychology, ethics or
?
School of Law, University of Warwick. A review essay of Nicola Lacey?s In Search of Criminal
Responsibility (Oxford: OUP, 2016) and Lindsay Farmer?s Making the Modern Criminal Law (Oxford:
OUP, 2016). Quotes from these works in the text are followed by page references in brackets. I thank
Craig Reeves for steering me back to Bernard Williams?s work, and for illuminating conversations
on questions of moral psychology. This essay was written while the author was a Major Research
Fellow under the auspices of the Leverhulme Trust, an award which is gratefully acknowledged
1 B. Williams, Shame and Necessity (Berkeley, CA: University of California Press, 2008) 219.
2 ibid, 66.
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Beyond Normative Assertion and its Critique
normativity, and political and institutional history.3 The first of these as I will
use it is usually absent from criminal justice thinking, leading to an either/or
play, in which ethics (the second level) or history (the third) is regarded as
the master, with the other term in the opposition downplayed or denigrated.
Mainstream theorists start from the second, critical theorists from the third.
Moral psychology represents here the underlying human basis for the existence
of ethics, something which is at the core of human being, but which is both
shaped in history and mediated by institutional practices such as those of law. By
identifying this underlying ground, I argue that we can grasp the relationship
between ethics and history in order to recognise the validity of both and their
complex interrelation. Williams helps here because his work begins to reflect
both the need for a moral psychology,4 that is a human psychology in its
connection to morality (as expressed in the first masthead quotation), and the
political and historical shaping of ethics in law (in the second quotation). Ethics
or normative thinking can accordingly be seen as occupying an intermediate
level between moral psychology and political and institutional history, and as
being informed by both.
In modern criminal justice thinking,5 there is a split between two approaches: one in which normative assertion dominates; the other, by way
of reaction, in which a historical and institutional critique of such normativism holds forth. Reviewing two books here on the critical and historical
side of this opposition, I am with them against the normative a priorism of
the mainstream. However, I want then to hold onto the sense that what normative assertion seeks to grasp retains validity, though it misunderstands the
phenomenon with which it deals. From that point of view, the two works
under review are right but raise questions with which they don?t deal. We
need to understand the normative dimension of criminal justice but in a way
that relates the ethical to an underlying moral psychology on the one side
and to historical practices on the other. We cannot work reductively in either
direction: yet this is what happens routinely in the field of criminal justice
scholarship.
To get us going, here is a brief account of how we might view the relationship
between criminal law as an historically evolved institutional practice and the
morality it instantiates. ?What I intend? is an important part of law?s judgment
form, but the ?what? is as important as the ?intend?, and the ?I? covers a multitude
of sins. Modern law formally separates the substantive ?what? from the formal
?intend?, which then permits the abstraction of responsibility, of the ?I?, from
its context. It is this separation that enables the split between the general
and the special parts of criminal law, between principles of the law and the
particular offences. It is at the heart of law as a practical and legitimate mode
3 For discussion of levels and how they work in a totality, see A. Norrie, Dialectic and Difference
(Abingdon: Routledge, 2010) 97-98.
4 Williams?s proposal for a naturalist moral psychology is developed briefly in J. Altham and
R. Harrison, World, Mind and Ethics (Cambridge: CUP, 1995) 202-205. It is discussed and
pushed in the direction of psychoanalysis by Jonathan Lear in ?Psychoanalysis and the Idea of a
Moral Psychology: Memorial to Bernard Williams? Philosophy? (2004) Inquiry 515.
5 For discussion of criminal justice thinking as a term of art see A. Norrie, Punishment, Responsibility
and Justice (Oxford: OUP, 2000).
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of social control. This is not the result of a simple logical process, but one that
makes sense in a particular legal-institutional context, which it helps reflexively
to constitute. It does not stop the law expressing a moral attitude, though
it significantly shapes its form. Law?s moral traction emerges out of a sociohistorical, institutional and ethical practice that identifies a specific legal form of
ethics as the form in which the moral will be expressed. There is an illicit fusion
in this of the moral and the legal, and much of modern criminal justice debate
is an attempt to address it ? often without realising it is there. In previous work,
I have described law?s morality as a ?morality of form?, that is as a particular
kind of morality that is shaped by a particular historical, political, institutional
context. The resulting ethics cannot thereby be discounted, but must rather be
understood in terms of its specificity and its limits. This then raises the question:
if ethics retain their salience, albeit in a particular, historical form, how do we
relate the historical and the ethical in a manner that is non-reductive on both
sides?
Legal ethics, I shall argue, sits between an underlying moral psychology and
an institutional history, and it is this setting that engenders its problematic field.
?What I intend? is (1) a specifically legal formulation shaped by institutional
logic and history that (2) expresses by refraction a moral assumption and which
(3) is related to an underlying moral psychology relevant to the nature of human
being.
CRITICAL PERSPECTIVES: THE HISTORICAL APPROACH
Nicola Lacey?s and Lindsay Farmer?s books have much in common. The authors
draw upon each other?s arguments to take an historical approach to the critical understanding of criminal justice. While their analytical focus differs, their
methodological approach is similar. Together, they represent an opportunity to
consider the value of a critical approach to criminal justice, to assess how far such
an approach has gone, and to think about where it might lead. With their different strengths, Farmer and Lacey both make real contributions to scholarship in
this area. Farmer?s is much the longer book, and is a detailed, painstaking, historical study of the making of the modern criminal law. The strength of Lacey?s
work is its interpretive and reflexive orientation to the law, thinking methodologically about the different approaches required to make sense of it. Both have
the same target, which is the mainstream normative approach to criminal law
theory, and both see an historical approach as the way to achieve a deeper understanding. Accepting their view that a critical approach takes us beyond a simplistic understanding of the law-philosophy relation (in the form of normative
assertion), I will argue that this can only be sustained if we take up a meta-ethical
position that understands the complex underlying relationship between law
and ethics.
To have a critical historical perspective is not to subscribe to one theoretical
approach. If there is an underlying theory in Farmer, it is Foucault?s idea of
governmentality, though this is woven into his historical treatment of criminal
law?s development. For Lacey, there are a number of underlying theoretical
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commitments, to feminism, to comparative political economy, to law and
literature, and to a broadly postmodern recognition of pluralism, hybridity,
conflict and dissonance. Despite these differences, there is considerable overlap
between the books, attributable to three significant qualities. The first is perhaps
obvious. Both authors are committed to what may seem at first sight a narrow
field of interest, the criminal law. Yet study of the criminal law takes them
from its own narrow bounds into the broad tradition of modern political
theory, and that is not to exclude (as Lacey indicates (5)) the Aristotelian and
Augustinian traditions. There is also a range of disciplines with which criminal
law directly abuts like criminology and penology, as well as linked disciplines
such as history, sociology, and political economy. Farmer quotes (297) the
late Neil MacCormick, who, in the tradition of the Scottish Enlightenment,
observed that criminal law is ?a condition of the civility of civil society? and
that it is only fully intelligible in that perspective. Farmer has the ambition
to understand criminal law in such a broad perspective, and it is one shared
by Lacey: to see criminal law in the round, as part of a social whole. This
is an important, substantial, starting point for an adequate understanding of
the law.
The second important quality that unites these texts is an emphasis on history. This explains why there can be differences in treatment, whilst holding
many points in common. Lacey and Farmer contribute to an overall historical
perspective that is richer for the varying approaches and different insights they
generate. Putting these two points on totality and history together, we come
to the third, concerning the relationship between critical and more orthodox
normative approaches.v While Farmer?s focus is the recent mainstream discussion of criminalisation, Lacey?s is the idea of the responsible subject and how it
is understood. Both however claim a different understanding of normativity by
way of a critical approach. Lacey complains of the orthodox approach to crime
that it produces ?a concept of responsibility whose validity . . . is assumed to
transcend place and time and which need not satisfy any particularly rigorous
criteria of fit with social practices which deploy ideas of responsibility?. In such
a view ?all we need is a clear sense of the conceptual structure of responsibility: there is a ?right answer? to how responsibility should be understood? (6).
Mainstream debate is dominated by the view that ?the main intellectual task
is to unearth the deep logic of existing legal doctrines? and then if need be
?to read them back onto history, as if things could never have been other than
they are? (12). This is the approach I describe as one of normative assertion
or normative a priorism. Against this, Lacey adopts an historical method to
show ?the existence of multiple, overlapping conceptions of responsibility? in
history, and by implication the inadequacy of the traditional approach which
only finds what it wants ?by excluding all phenomena outwith [its] conceptualisation? (190). Criminal responsibility is in reality shaped by an ideological,
interest-based, and institutional framework which is historical, dynamic and
changing, so that a
conceptualisation or theorisation of responsibility which was inattentive to these
broad changes would, quite simply, be irrelevant to our understanding of criminal
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responsibility, because it would be unmoored from the very phenomena which it
purports to illuminate or conceptualise (191).
In short, Lacey?s approach is to see the law?s norms, rules and principles holistically (184), as part of a broader set of institutions, processes and practices.
Without doing so, the seemingly central categories will not be properly understood. Even if human beings are constituted ontologically as agents with the
possibility of being responsible for acts, what that means in any real world social, especially state-based, setting will depend on the conditioning, buttressing
or shaping context.
Farmer makes a similar point regarding criminalisation. Those writing normatively in this area think of the problem as one of identifying ?the relationship
between state and citizen . . . that is as a problem primarily of moral and
political philosophy?, which is seen as ?an ahistorical question? (2). To the contrary, Farmer argues that a historical view shows how flexible and changing
the idea of the ?proper? scope of the criminal law is. Viewed as a coherent,
institutional, evolving whole, the modern criminal law ?is shaped by the broad
aim of securing civil order? and this is not a matter of moral or political philosophy in the abstract but of the ?coordination of complex modern societies
composed of a range of entities? (299). Civil order is about securing trust, and
how this is achieved varies according to time, place, area of the law, and changing conceptions of the state. Civil ordering carries normative implications, but
no straightforward assertion of a norm applied to a situation can capture the
working of law in the social totality. There is a connection between law and
normative ordering, but it is more holistic and accordingly more indirect than
the mainstream would have it:
This is not an attempt to give moral foundations to the law, by identifying . . .
prescriptive principles, but it is normative in the sense that it recognises that ideas
about civil order can establish a kind of normative horizon for thinking critically
about the law (302).
This approach contrasts with recent criminal law theory which turns inwards
to
prescriptive definitions and a search for conceptual coherence. There is unease
about the growth of the criminal law, but this has led many theorists to seek
security in an ideal account of law . . . While this approach produces a certain
internal clarity and coherence, safe from the messy complexities of social life and
change, it comes at a cost of an understanding of the diversity of norms and the
complex institutional structure of the criminal law (303).
The difference between the critical and the normative approach is that the
latter sets up a normative model, which it seeks to apply, but the application
proves inadequate. At that point, having established the model, the mainstream
theorist may introduce historical or political complexity into the theory, ie after
its normative dimensions have been developed. The problem for this approach is
that ?the type of ideal entity which we deem really existent is such as always exists
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only by virtue of its correlation with material objects and processes? (Lacey,
186). In criminal law theory, where the idea of what the state ought to do is
at constant variance with how the justice and penal systems work, normative
theory becomes an ideal that stands as a constant reminder of what might be the
case in a different world, a regulative ideal that rarely regulates. One response to
this is that it may be as well to have the constant ?regulatory reminder?, but the
counter-response is that repetition obscures reality. In supposing that we could
take the law in a direction that is not possible by virtue of ?material objects and
processes?, its promise-in-vain becomes a casuistic legitimation of the bad way
things are. If we do normative work in the de-totalised way of the mainstream,
we are at risk either of irrelevance by painting moral pictures that have no real
place in the world, or of submitting ourselves to a law of unintended moral
consequences (because normative ideals might behave badly when deployed in
a world with which they are out of kilter), or of working to legitimate practices
we abhor, or of all three together.6
Yet, there is surely a problem here for the critical enterprise. Lacey and
Farmer are critics because they are historians, but they appear to do their
history with a moral purpose. Is their scholarship just a matter of describing law?s ?normative horizon?, or of historicising its responsible legal subject?
If there be ethics in or around the modern law, how do critics understand
it? How should they respond to the normativist?s assertion that legal ethics,
however configured, matter, so that they should be given recognition? History
may well shape, but it shapes normativity, so the latter reasserts its priority,
doesn?t it?
INSTITUTIONAL HISTORY OR NORMATIVE ORDERING?
Farmer?s Making the Modern Criminal Law has both a broad and a narrow focus. The narrow focus is on the idea of criminalisation, an idea much debated
in recent liberal, or as Farmer has it, ?neo-classical? (meaning rooted in a retrieved retributive theory and insisting on legal modalities of principles and
rights) literature. The aim of this work is to identify the proper normative limits of criminalisation and then to propose their practical application. Farmer?s
response is to argue that over-criminalisation implies an appropriate role for
criminalisation, but this is a more complex concept than is usually realised.
Criminalisation is what the criminal law does, but what it does involves understanding what it is. What it is not is a set of limiting normative principles
that can be applied to the law regardless of time or place. Taken realistically and
historically, criminalisation is a body of thought and action which works to
coordinate and legitimate modern capitalist societies by establishing conditions
of civil ordering. Such ordering is a broad phenomenon that includes the legal
mode of social control, and this involves crafting the general and the special
parts of the criminal law. The aim is the development of a state and systemwide ordering, wherein liberal principles represent but one part of the social
6 A. Norrie, Justice and the Slaughterbench (Abingdon: Routledge, 2017) ch 9.
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control network, and one that varies over time and place. Accordingly, against
an approach based on normative assertion, to extract and distil general legal
principles of criminalisation from their governmental context as the essence of
governance is to misunderstand how law actually works.
In making this argument, Farmer expands his narrower focus on the topic of
criminalisation into a broader account of the law. His work moves methodically
from ideas of legal institution and civil order through accounts of its specific
modalities - jurisdiction, codification and responsibility ? before three final
chapters on specific areas of the law ? property, person and sex ? which
depict the law?s criminalisation work in all its practical and historical variation.
Especially in the three final chapters on substantive law, Farmer is able to
explore the ?dialogue? between the law and its context, and how evolving
social reality relates to or negates existing norms. Here especially is a law
of unintended consequences as law fails or succeeds, with misapplication of,
or scant regard to, supposedly underlying principles. It is never a matter of
the simple application of principle to practice. Farmer is right to embed the
normatively specific in the whole. The key move is in the ordering of the four
chapters in the second part of the book, where the chapter on responsibility
comes last, after chapters on historical periodisation of the law, jurisdiction
and codification. I might have placed the first chapter, on the periodisation of
the criminal law, after rather than before the other three, but that is not the
key issue. Placing responsibility last follows Farmer?s argument that the idea of
responsibility is essentially a legal artefact, so that while it may be central to the
modern law, which Farmer accepts, this is so because the social, political and
cultural creation of the modern legal institution has made it so.
This is a major historical analysis of the criminal law which in the process
neatly pins the limits of the recent criminalisation debate. I hope that its
systematic quality will not lead to its marginalisation in the mainstream, or
preclude its argument being grasped. There is however an aspect of his argument
that may block its acceptance. It concerns what I see as a too simplistic exclusion
of law?s ethical dimension. In writing of the law as an institutional complex,
Farmer wants to draw a line against the normative understanding of the criminal
law; but how far should he take this? He wishes to sever the tie between legal
and moral responsibility, a tie that lies at the heart of mainstream scholarship.
Responsibility
is key to the modern law, but not because of any intrinsic connection between
wrongdoing and responsibility and the justification of punishment, but because
responsibility has become central to the modality or form of law, and thus to the
way that civil order is secured? (165).
Responsibility ?must be understood in the much broader sense of establishing
rules and standards of conduct? (197). I agree with Farmer?s assertion of the
essentially institutional form of the criminal law, but question whether his
characterisation goes too far.
As we have seen, mainstream criminal law theory tends to assume an intrinsic connection between law and morals, and this is what Farmer aims his
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critique against.7 If legal responsibility is ?primarily a legal artefact?, morality must be kept at a distance, but what are the terms of that distance? For
Farmer, the legal conception ?may be based on, or ?track?, conceptions of
moral responsibility, and conceptions of moral responsibility might help refine
legal doctrine, [but] they are not ?foundational? in the sense of being prelegal?. At the same time, it is the case that legal responsibility, in the sense
of either attribution or culpability, ?has come to be articulated by judges and
theorists in a moral voice?, though this is a matter of historical contingency
rather than conceptual necessity (170). Here is the point of difficulty for his
account: how, the mainstream theorist will ask, is it possible for legal responsibility to track moral responsibility without there being an intrinsic nexus? Is
it just happenstance, history?s accident? Take for example Farmer?s discussion
of Adam Smith?s model of the impartial spectator and its ?imaginative identification with others? which indicates ?a central linkage between the idea of
being responsible for oneself in relation to others, and in being capable of
being held responsible . . . to others for one?s conduct? (168). If there is a
core of moral truth in Smith?s position (would Farmer say otherwise?), and
it is linked to modern legality, does that not bespeak a connection that can?
be denied?
Or take the modern criminal court, and its connection to a ?kind of moral
community?. Farmer notes that the court ?speaks in a moral voice? but this is not
the ?naked expression of moral indignation? or the assumption of ?the partisan
position of the victim?, but the giving of shape to judgment ?which links
responsibility practices to emerging ideas of the fair trial? (195). The linkage to
a specific institutional element (the fair trial) suggests a non-moral, legal ground
to judgment, but that is surely not the full story. When the judge sentences the
criminal, or counsel for the prosecution or defence bring out the story of what
happened, or the jury makes a decision, none of this is purely a matter of legal
process. It is generally rather a narration and judgment of a moral tale filtered
through a legal framework. Judges are able to make the moral meaning of the
conviction as they see it pretty clear, so their position is to speak on behalf of a
projected moral community, and in terms that that community (as imagined)
may recognise. The historical and institutional setting are of course important
to judgment, but it is impossible to deny the moral element completely. We
thus have a legal process of judgment that includes a moral aspect, albeit one
that is wrapped in the legal form, a form that may inflect, channel and distort
it. That is what we should be looking for, not a complete shutout, which serves
only to create a complicit duality with the mainstream ? that ultimately will
reaffirm the mainstream position.
The question then is: how do we configure the moral link to the legal
institutional level so as to avoid an unproductive standoff? For the mainstream,
the legal-institutional domain is seen from the point of view of what can
be normatively asserted about it. From the critical historical point of view,
7 Farmer?s aim is not always accurate. He writes for example that individual responsibility ?is
treated as a concept that precedes and structures any theoretical account of the criminal law?
(163), citing my Crime, Reason and History (Cambridge: CUP, 2014) as an example. The basis of
this interpretation is not clear to me.
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normativity is only a product of historical happenstance. A position that could
configure an indirect interrelation would be one that could simultaneously grasp
the different levels in their separation, and from that vantage point elucidate
their interconnection.
THE RESPONSIBLE SUBJECT IN HISTORY
In Lacey?s In Search of Criminal Responsibility, the optic through which to view
the modern criminal justice system is the responsible subject. Her focus is the
shifting forms of responsibility in a dynamic historical context. Responsibility
remains the central thread, but it is subject to differential shaping as it draws
on capacity, choice and fair opportunity doctrines, on questions of character,
outcome and, most recently, risk and danger. These last two inflexions take us
back to the early modern interest in character, for the dangerous or risky subject
is precisely he or she who has things about them other than just a rational,
individual will to crime. The consequence is a modern, pluralistic, hybrid,
criminal law and a ?messy? development. Lacey seeks to capture this conjunction
in its fluidity and in terms of the different ideas, institutions and interests that
went into shaping the law, which a variety of perspectives illuminate. The
book concludes with a nicely focused criticism of orthodox jurisprudence.
What such thinking imagines to be a matter of necessary legal modality in
fact looks a lot like one particular historical mode of governance writ large for
all times and places. In criminal law similarly, historical method reveals not a
neat basic framework but ?the existence of multiple, overlapping conceptions
of responsibility? (190).
In terms of our discussion, Lacey?s account raises three questions. The first
concerns the nature of her commitment to a sense of the plural and the hybrid
in legal subjectivity. The second involves a question about the relationship of
her conception of responsibility to the historical development of which it is
a part. The third, glimpsed at the margin, raises the issue of the underlying
relationship between law and ethics.
Necessary hybridity and the capacity and control model
Taking the first of these: to what extent is the hybridity of the forms of
responsibility based on a fully pluralist understanding, so that the criminal law
is essentially hybrid; or is there a sense of the primacy of the capacity and
control form over the others? If the latter, how is full hybridity possible? For
Lacey, character is an early and a late modern phenomenon, though she points
to the ways in which its morally substantive judgments are always present in
the modern law. These are often secreted away in a legal world whose selfunderstanding is expressed in capacity and choice terms. An important question
then is: what are the nature and implications of that self-understanding? Is there
a sense in which the capacity and choice model is historically central to modern
capitalist societies?
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Lacey perhaps allows that this is the case. Though she shows that ?multiple
conceptions of responsibility have co-existed at various times in England and
Wales?, she goes on to say that
capacity responsibility is salient, but not exclusive, while risk, outcome and
character-based assessment have tremendous sway at the prosecution and sentencing stages, producing a hybrid pattern of responsibility-attribution in the overall
practice of criminalisation? (78).
Does this formulation, identifying where risk, outcome and character hold
sway, mean that capacity responsibility plays the bigger part? It is not clear.
Later, Lacey accepts that there is a ??core? to the idea of responsibility, a
core related to the idea of human agency and accountability for conduct? and
that this ?acts as a constant thread amid shifting theories of responsibility over
time and space?. She adds however that the core is ?relatively small? and that
it is significantly inflected ?by varying social and institutional conditions and
practical imperatives? (186-187), which cannot be ignored. Lacey?s comments
are finely balanced and the language (eg, the ?salience? of the capacity approach)
nuanced.
On close inspection, I suggest, two possible narratives could be at play.
One would be what I shall call ?full responsibility pluralism? (FRP), where
pluralism and hybridity go all the way down. The other would be ?fully inflected
agency responsibility? (FIAR), where agency (capacity, control and choice)
responsibility is key, but is itself viewed as intrinsically and inherently pluralistic
and hybrid. I am unsure whether to read Lacey as embracing the first or
the second. The first thesis seems more in keeping with her general method,
but she does not really press it. Whichever her overall view, I would support
FIAR, for two reasons: one I will now explain, deferring the second to the
next subsection. The first reason to prefer FIAR concerns the broad range of
grounds Lacey gives for the rise of an independent and autonomous capacity
and control subject in the 19th century. From the Enlightenment down through
the Victorian period, it is the autonomous individual who tends to win out ?
in moral and political philosophy, in utilitarian government and in economic
ideology. We might therefore expect the same in law. It is true that this subject?s
victory, such as it is, is always accompanied by alternative forms of responsibility.
So if we don?t simply accept pluralism all the way down (FRP), we would need
to explain how hybridity can be so compelling in modern legal form at the
same time as we accept the predominance of the capacity and control model.
How is it possible to hold onto both the primacy of one model and the pervasive
nature of hybridity within it?
The answer to this question is to be found in the abstraction of the capacity
and control model, which is at the same time dominant and inherently partial.
It is necessarily the case that the responsible individual subject never enters
the scene alone, for its abstraction renders it immanently plural and hybrid.
This is the point of Lacey?s discussion of Jekyll and Hyde (71). If Victorians
were held to a model of rectitude based upon a high degree of self-control
in a world of radical change, small wonder that they should be anxious lest
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the seeds of uncontrollable dangerousness might lurk in them. Self-imposed
control necessarily invokes anxiety about losing it. This is a fundamental issue
in the liberal theory of the responsible subject. The person that is honoured
morally by recognising its responsibility has to be the very same person who
is capable of committing acts that are violative and dangerous. If you support
the concept of the abstract, autonomous subject, you implicitly support its
immanent, necessary, dangerous other.8
For example, if we take the aims of punishment to be retributive, consequentialist, rehabilitative and incapacitative, we might ask why we go for
these very different and conflicting penal ideologies. The answer is that the
abstract, responsible subject of retribution must also always and already be constituted concretely as deterrable, dangerous, risky, or reformable. That is why,
in line with Lacey?s pluralism, and pace the just deserts sentencing school, no
single rationale for sentencing is ever viable. The abstraction of the retributive just deserts rationale renders it an empty and floating signifier.9 My point
here is not to argue for pluralism and hybridity tout court (ie for FRP), but
rather for the necessity of pluralism and hybridity within a model that sees
the capacity and control model as central (ie FIAR), because of the necessary absences and entailments generated by its abstraction. It is in the very
nature of that model that it undoes itself in favour of its various ideological
others. Abstract subjectivity entails plurality and hybridity so that we should
expect a ?messy? criminal law just because there is a strong structural and ideological pull under modern social conditions towards the capacity and control
subject.
Pluralism and incompleteness in the law?s historical development
The second issue concerns how we explain the historical development of
the modern criminal law. If the capacity and control subject never comes
alone, historically it has sometimes looked like it might never come at all. If it
could take over a century to arrive at the situation where the abstract subject
would find its fullest expression, only then to go into something of a decline,
does this not suggest a fully pluralist (FRP) reading of the law? Herein lies
the importance of Lacey?s emphasis on political economy. In her argument,
Lacey describes the changing shape of the law in detail. Alert to hybridity
in action, she is aware that legal form is rarely simply one thing or another.
One can perhaps trace three important historical phases in the creation of
modern criminal law: the nineteenth century development of a capacity based
responsibility model; the post 1945 development of this model under the
penal welfarist settlement that began to die back in the 1970s; and the most
recent period, from the late 1970s, which Lacey describes in political economy
terms as involving the collapse of Fordism, the attenuation of social solidarity,
dilution of the welfare state, and economic crisis. These recent dynamics have
together intensified insecurity leading legislators to produce laws ?that can
8 H. Carvalho, The Preventive Turn in Criminal Law (Oxford: OUP, 2017).
9 Norrie, Crime, Reason and History n 7 above, ch 12.
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reassure an anxious public that their concerns are being taken seriously and
that ?the criminal threat? can be contained? (170). This, then, is the route to
the revival of dangerousness, character and status-based offences, to the reaching
for liability in the thought processes of the accused (the pre-inchoate offences),
the extending of punishment in the case of the dangerous, and the activation
of the victim ideology of vulnerable autonomy.10
This argument has different elements, but Lacey?s method, in tracing developments in criminal justice over the entire period and especially during the
past 40 years to shifts in political economy, is essentially right. Whereas Lacey
emphasises the openness of the political and democratic process to popular authoritarian views (130, 173), I would rather stress the ways in which politics are
directed within structural contexts to achieve outcomes in line with available
means of legitimation. In a neo-liberal environment, the former wellsprings of
consent, nurtured through welfare, social democratic and corporatist structuring mechanisms, diminish. Politicians in reaction reach for thinner solidarising
strategies (such as communitarianism) and at the same time for forms of ?hostile
solidarity?11 that divide, ?other?, fuel anger and lead to repression. It turns out
that the neo-liberal state is not a night watchman keen to avoid intervention
(or adventure) in pursuit of its interests, and this has consequences which the
criminal justice system must mediate. Actions have consequences, but so too in
an important sense do structures: popular authoritarianism is an effect as much
as a cause.
My argument invites the response that structures don?t operate by themselves, and an elite political or media-led argument must find traction to succeed. Nonetheless, it is worth labouring the relationship between structural
political economy and political, ideological and legal forms, since it is the key
to understanding the historical trajectory of the capacity based model in the
criminal law. Here, I draw on the argument developed originally by Peter
Ramsay,12 that T. H. Marshall?s three concepts of citizenship ? civil, political
and social ? allow us to understand the historical waxing and waning of the
individual capacity and control model. The idea of universal individual responsibility in law brought together ideas of what Marshall called civil (ie property
rights based) and political (ie democratic rights based) citizenship, and this constituted the basis for a possible universal model of the criminal legal subject.
However, making the possible actual, as happened to a degree after 1945 in
British social policy, required the injection of a commitment to social inclusion
(ie social citizenship) that the welfare state provided. It was only the coming
together of Marshall?s three forms of citizenship after 1945 that provided the
conditions for the full universalisation of the criminal law subject, a full century
after it was canvassed by the Victorian Criminal Law Commissioners.13 The
more recent withdrawal of welfarist and social democratic citizenship forms in
10 P. Ramsay, The Insecurity State (Oxford: OUP, 2012) ch 5. On pre-inchoate offences, see ch 7.3
11 H. Carvalho and A. Chamberlen, ?Why Punishment Pleases: Punitive Feelings in a World of
Hostile Solidarity? (2017) Punishment & Society (Online First) 1-18.
12 P. Ramsay, ?The Responsible Subject as Citizen: Criminal Law, Democracy and the Authoritarian
State? (2006) 69 MLR 29.
13 Norrie, Justice and the Slaughterbench n 6 above, ch 2.
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favour of neo-liberal reforms has undermined the universalism of the criminal
law subject (the political citizen of the criminal law).
This historical trajectory leads away from universalism and towards the particularisms of penal bifurcation, of individuated dangerousness, and of suspect
communities. In a mirror reversal of the previous period, as social citizenship
crumbles, it drags down universal political citizenship, and its universalist conception of free agency becomes transformed into the pursuit, figurative and
literal, of the suspect, the risky, the dangerous, the out-group, the other. Hence
returning to the question of hybridity, we witness the universal legal subject,
who never came alone, lose its allure in the face of a pluralism and particularity
re-emergent in the wake of neo-liberalism. Yet even as it wanes, the capacity
and control model retains its importance, now in terms, for example, of the
justification of increased punishment.14
Legal and moral subjectivity
These two considerations, favouring FIAR over FRP, leave us facing the continuing importance of the capacity and control model of individual responsibility, now with a better grasp of both its necessary hybridity and its historical
incompleteness. There remains now the question about how we are to understand its moral salience, especially as we accept Lacey?s strictures against normative a priorism. Lacey is less categorical than Farmer, permitting the question
of normativity to linger, and observing that ?most contemporary philosophical analyses of responsibility are grounded in notions of human agency that
emerged in Europe in the philosophy of the Enlightenment?. She adds that
their intellectual ancestry includes ?discussions of voluntariness and the will? in
Aristotle, and debates ?about individual conscience and human freedom? (5) in
the Christian theological tradition. It would be an ambitious historical project,
one that Lacey sensibly eschews, to establish that this moral continuity was a
matter of social construction all the way down. If we don?t follow that route,
ought we to pursue the line that this tradition says something about the human
condition? And if we do, how far can we take that without tumbling back into
the arms of the normative a priorists?
As we have seen, Lacey returns to the issue at the end of the book when she
writes that we can accept ?that there is a ?core? to the idea of responsibility, a
core related to the idea of human agency and accountability for conduct which
acts as a constant thread amid shifting theories of responsibility over time and
space?. However, she adds, this core is ?relatively small?, and ?the inflection
which it is given by varying social and institutional conditions and practical
imperatives is so decisive? (186-187) that these cannot be ignored if we are to
explain the law. Of course, that is so. But should we then repudiate any moral
significance to this ?relatively small? core; or does it say something about the
human enterprise and what we should make of it in moral terms? History, I
will suggest, might propose and dispose, construct and destruct, but it is not
14 Norrie, ibid.
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fully constitutive of what it means to be human. If as Lacey rightly says, ideas
of moral agency are to be found in the Greek and the Christian traditions as
well as in our post-Enlightenment world, then we need to think more deeply
about the role of these ideas in our critical thinking about modern society
and its criminal law. For all the criticism it has attracted, the abstract legal
subject stands for something beyond itself, and we ought to regard it not only
in terms of its historicity, but something else: its connection to what it means at
a deep level to be human. To say that, however, must not involve capitulation
to mainstream normative theorising.
BEYOND ASSERTION AND ITS CRITIQUE: TOWARDS A MORAL
PSYCHOLOGY OF SUBJECTIVITY
This essay began with the contention that we should conceive the terrain of
criminal justice thinking holistically, and as constituted by three levels: moral
psychology, ethics or normativity, and political and institutional history. The
first of these is usually overlooked in criminal justice thinking, leading to an
either/or play, in which ethics or history is regarded as the master, with the
other term in the opposition downplayed or denigrated. The critical resources
to avoid this impasse are to be found at the most underdeveloped of the three
levels, that of moral psychology. This represents the underlying human basis
for the existence of ethics, something which is at the core of human being, but
which is both shaped in history and mediated by institutional practices such as
those of law.
Drawing on Bernard Williams?s Shame and Necessity, three points merit brief
elucidation. First, Williams explored the relationship between universal features
of ethical experience and how these are configured in history and culture to
establish a particular sense of moral judgment. Second, there is the relationship
between moral judgment and its modern shaping by political and legal institutional practices. Thirdly, and most importantly, there is the beginning of an
understanding in Williams?s philosophy of the link between moral judgment
and its underlying ground in human psychology. This is the terrain of moral
psychology. Recognising these three aspects of his approach, we will see that
Williams identified ethical discourses as an intermediate level sitting between
an underlying moral psychology and the overarching and informing practices
of institutions and polities such as the state and law.
Ethics between human psychology and history
As regards the relationship between universal features of ethical experience and
how these are shaped, Williams recognised both aspects. Comparing Greek and
modern ethics, he argued both for a plurality of ethical views and for irreducible
elements present in both worlds. These are brought together differently in
different cultures. While elements of cause, intention, state and response are
universal aspects of human agency,
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there is not, and there never could be, just one appropriate way of adjusting these
elements to one another [or] just one correct conception of responsibility . . .
These really are universal materials. What we must not suppose is that they are
always related to one another in the same way or, indeed, that there is one ideal
way in which they should be related to one another . . . 15
We have not today, he says, ?evolved a definitively just and appropriate way
of combining [our] materials? to achieve an appropriate concept of moral
responsibility. What we have is a quite superficial way of understanding an
important moral issue. Williams?s balancing of a universal set and its particular and historical combinations is Lacey?s point about the thin continuity
of terms underlying plurality in her discussion of the responsible subject.
It indicates what the basic human moral material might be, whilst retaining an open commitment to the different ethical possibilities of time and
place. Williams? bivalence reflects the connection and the difference between a rudimentary moral psychology and an ethical actuality. It indicates
that there are components for a theory of human being as moral (a moral
psychology) ahead of any ethical account that combines them in particular
ways.
The point is brought out more strongly in Williams?s account of the difference between Greek shame and modern guilt. An ancient Greek sense
of what is expected of an actor in a community can be contrasted with a
modern individualistic, essentially Kantian, sense of ?characterless?, decontextualized, guilt. In the modern view, shame is something that comes from
outside the subject, and therefore represents an unacceptable moral heteronomy. The Greek approach to shame is more realistic in that it provides an
ethical view of how people come to understand themselves by virtue of living
in a community. For modern people, guilt may seem morally self-sufficient,
but this is because ?they have a distinctive and false picture of the moral life,
according to which the truly moral self is characterless?. The central feature
of moral being is provided ?by reason, or perhaps by religious illumination?
and involves ?knowledge of the moral law, [which] I need only the will to
obey . . . ?. This ?leaves only a limited positive role to other people in one?s moral
life?.16 The voice within carries moral weight, not the view or the face of the
spectator.
Although the Greeks emphasised shame to the detriment of guilt, Williams
did not simply invert the position. Rather, he wanted us to see that the moral
information included in the ancient practice could help to develop the modern
notion:
To the modern moral consciousness, guilt seems a more transparent moral emotion
than shame. It may seem so, but that is only because, as it presents itself, it is more
isolated than shame is from other elements of one?s self-image, the rest of one?s
desires and needs, and because it leaves out a lot even of one?s ethical consciousness.
It can direct one towards those who have been wronged or damaged, and demand
15 Williams, n 1 above, 55-56.
16 ibid, 94-95.
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reparation in the name, simply, of what has happened to them. But it cannot by
itself help one to understand one?s relations to those happenings, or to rebuild the
self that has done these things and the world in which that self has to live . . . 17
If we wish today to take seriously the moral idea of guilt, which lurks inside
its modern form, we need to understand how the element characterised as
shame among the Greeks can help. The analysis points in two directions. The
first aspires to understand how the modern approach came to be as it is;
and here, Williams points to political and institutional history. The second is
towards a grasp of what human beings must be like as the kind of species that
has this ethical quality of being able to configure and reconfigure its moral
practices differently in different historical situations; in other words, towards
an underlying moral psychology, one that can make sense of the idea that we
might want to understand our relations to what has happened, or to ?rebuild
the self? in a ?world in which that self has to live?. There is a psychoanalytic
flavour to these comments, to which I will shortly return.
Responsibility as a political and institutional form
Williams makes the critic?s point that politics and institutional history shape our
ethical practices. Contrary to the aspirations of modern normative assertiveness,
Williams thinks we should be suspicious of our moral concepts. Moral thinking
about responsibility is profoundly shaped by the state and its political theory.
We have not ?managed to substitute for the Greeks? ideas a purified notion
of something called moral responsibility, [which we] then do the best we can
to embody . . . in the law of the state.? Rather, in fashioning our modern
doctrines,
we have . . . handed many of the responses to a very special formation, the modern
state, and we have principles governing what such a state can and should do. An
important ideal that helps to shape those principles is that an individual should,
so far as possible, have control over his or her life, in relation to the power of the
state . . . 18
Normative assertiveness is in the hands of a particular, political theory of what
it means to be morally responsible. Our ideas about legal responsibility are
accordingly ?governed by a certain political theory of freedom in the modern
state, not by a moral refinement of the very conception of responsibility?.19
Accordingly we should discard a sense that our legal practices are ?supported
at some deeper level by a basic idea of what it is to be ?really? responsible?.
We ought not to deceive ourselves that our ?public practices of ascribing responsibility can be derived from an antecedent notion of moral responsibility,
or that the idea of the voluntary is uniquely important to responsibility . . . ?.
17 ibid, 94.
18 ibid, 66.
19 ibid, 65-66.
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This may be a useful idea in terms of legal justice, but ?it is essentially superficial?.20 But Williams is not himself superficial. He is not reductive. He does
not think responsibility lives by politics alone. There is another dimension to
his argument, bringing out the moral psychology that lies interconnected with
political and institutional form.
Towards a moral psychology
The philosopher and psychoanalyst Jonathan Lear describes Shame and Necessity
as a philosophical masterpiece, one that shows Williams ?at the edge of developing a psychoanalytic approach to moral psychology?.21 Williams?s development
of what I am here calling a moral psychology is limited, but he does affirm
the necessity of this level to our understanding of ethics. Having identified
the need to understand and rebuild the self in a community, an endnote on
?Mechanisms of Shame and Guilt? reads:
In the case of guilt, the internalised figure is a victim or an enforcer . . . . [ At]
the most primitive level, the attitude of the internalised figure is anger, while the
reaction of the subject is fear . . . From this primitive basis, it is possible, by what is
sometimes called ?bootstrapping?, to develop the model to allow for reactions that
are progressively more structured by social, ethical, or moral notions. So mere fear
at mere anger becomes fear of recrimination, and this can develop into [a concern
about] justified recrimination.22
Mention of the ?internalised figure? of a victim or an enforcer and of the
?primitive? level of moral psychology is significant. Together with developing
structural complexity, of a move from basic psycho-moral feeling to sophisticated ethical concept (justified recrimination), these are ideas that owe their
progeny to study of the psyche. Williams was not a psychoanalyst,23 but a
philosopher developing an awareness of the split nature of his own discipline.
This pushed him towards identifying both an irreducible basis to ethics in human psychology, and a sense of the vulnerability of modern ethics to history
and politics. Philosophy begins to be stretched between exploring the nature of
the human psyche in naturalistic terms and a sense of what history and politics
make of it (compare again my two prefatory quotations). The conjunction of
these levels is clear in Williams? diagnosis of the problem of modern ethics in
the following passage, in which the modern capacity and control conception
of ethics is presented as an ?idealised picture? and ?false conception? which
blots out a ?primitive? basis of guilt. Though Williams does not employ the
20
21
22
23
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ibid, 67.
Lear, n 4 above, 517.
Williams, n 1 above, 219.
Compare the above quote with M. Klein, Love, Guilt and Reparation (London: Vintage, 1998)
ch 19. Lear objects to Williams?s account of ?bootstrapping? as not naming ?any determinate
psychological phenomena or theory?, but as ?serving as a placeholder for that theory . . . that
will acceptably explain how more complex psychological reactions . . . are built up from less
complex ones?. See Lear, n 4 above, 519.
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psychoanalytical designation of ?phantasy?, he was deep into the contrasting
realms of moral psychology and political morality when he wrote:
In guilt-centred, autonomous, moralities the point is supposedly reached where
there is no distance at all between subject and internalised figure, and guilt is
pictured as an emotion experienced in the face of an abstraction, the moral law,
which has become part of the subject himself. This idealised picture serves the
false conception of total moral autonomy . . . by blotting out the primitive basis of
guilt . . . When the conception of guilt is refined beyond a certain point and forgets
its primitive materials of anger and fear, guilt comes to be represented simply as
the attitude of respect for an abstract law, and it then no longer has any special
connection with victims.24
My suggestion, then, would be that if we grasp the underlying level of moral
psychology, we have a ground from which to understand how ethics operate in
relation to history. Without that ground, I think we end up with a polarising
split. One side says that it is ethics in charge, the other prioritises history. That
is the split which pervades the field and divides commentators and critics. It
is the untold, half-submerged backstory to the two books reviewed here. The
underlying ground of basic moral psychology is what makes it possible for an
historically inflected ethics to exist, in which we can see both the case for the
importance (but not the a priority) of ethical concepts and of their historical
and institutional shaping (but not their historical reducibility).
CONCLUSION
To recap, ?what I intend? is an important part of criminal law?s judgment form;
the ?what? is as important as the ?intend?; and the ?I? covers a multitude of sins.
?What I intend? is a typical legal formula rooted in its capacity and control ethics.
Its central focus is on the verb, but what do we mean by the psychological state
of intention? Of course, the thing that is intended provides the moral colour
to the intention,25 provides a sense of its ?character?, to use Williams?s (and
Lacey?s) term. Herein lies the immanent ground of the law?s hybridity.
Two more questions are invited by law?s judgment form. The first is, how
did we get to the position in which we formulated criminal responsibility as we
do? We can say with Williams that intentionality is a human mental state, but
psychological intentionality is not necessarily a guide to moral culpability.26 If
it is a guide to legal culpability, then what is the difference between moral and
legal culpability? The answer is supplied by a political and institutional theory
of legal responsibility, which takes us to liberal political theory and its refraction
of a related moral psychology. In the terms of Lacey?s, Farmer?s and my own
work,27 the political theory needs to be supplemented by a thicker history of
24 Williams, n 1 above, 219-222.
25 A. Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990); Norrie, Crime, Reason
and History n 7 above, ch 3.
26 Norrie, ibid, ch 3; Justice and the Slaughterbench n 6 above, ch 5.
27 Norrie, ibid.
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ideas, institutions, and relations between social classes. But it also needs to be
related to a moral dimension that is central to law?s legitimation and popular
traction if we are to make proper sense of it. This points in the directions of
both historical and ethical critique.
The second question concerns not the ?what? or the ?intend? but the generally
under-interrogated ?I?, which is much more important than we normally allow.
Who or what is the ?I? that intends and causes, that feels guilt or shame, and
how does it come to be? That is the work of a moral psychology that can
understand how humans are constituted, and how their constitution feeds
into ethics for people who are the subjects of polities. The ?I? is a subject,
but a subject in relation, and its relationality is both social28 and, as Williams
indicates, intrapsychic.29 Criminal justice theory?s lack of curiosity as to the
nature of the ?I? is perhaps indicated by its general failure to make connections
to psychoanalysis. In probing Williams?s work, we are drawn towards the idea
of a moral psychology in which the language of psychoanalysis could play
an important part. Here, but also in exploring different aspects of our ethical
constitution,30 we may find ways of developing a moral psychology that can
reveal how criminal law and justice can be both historical and ethical in a
complicated and irreducible way.
28 This was the subject of Norrie, Punishment, Responsibility and Justice n 5 above.
29 See J. Benjamin, The Bonds of Love (New York: Pantheon, 1988); J. Lear, Love and its Place in Nature
(New Haven, Ct: Yale University Press, 1990). The two directions are inherently connected.
30 In recent papers, I seek to explore such aspects: see ?Responsibility and the Metaphysics of Justice?
in Norrie, Justice and the Slaughterbench n 6 above, ch 10 (paper considering the ethics and moral
psychology of responsibility in regard to survivor guilt); A. Norrie, ?Love and Justice: Can we
Flourish Without Addressing the Past?? presented at Values and Human Flourishing Conference, Department of Sociology, Yale University, and at Indira Ghandi National Open University,
New Delhi, March-April 2017 (paper considering the relationship between conditional and
unconditional forgiveness and unconditional love); A. Norrie, ?From Political Theory to Moral
Psychology: Renewing Punishment?s Critique? presented at CLCJT Forum, London School of
Economics, January 2017 (paper considering the young Hegel?s account of love, grief and reconciliation); A. Norrie, ??Working Through to the Polis?: Transitional Justice and Psychoanalytic
Method? presented to BISR Guilt Group, Birkbeck College, December 2016 (paper comparing
transitional justice dialogue with the psychoanalytic process of ?working through? mental objects);
A. Norrie, ?The Moral Grammar of Guilt: Perspectives in Political Theory and Moral Psychology? presented at Workshop on Criminal Law?s Person, University of Stockholm, October 2016
(paper developing a moral psychology of guilt with regard to the issue of perpetrators as victims
who victimise others). All unpublished papers are on file with the author.
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