Attribution, Ethics and Emotions in Criminal Responsibility
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00489.x |
| Published date | 01 March 2004 |
| Date | 01 March 2004 |
| Author | Victor Tadros |
REVIEWARTICLE
Attribution, Ethics and Emotions in Criminal
Responsibility
V|ctor Tadros
n
W| l l i a m W| l s o n ,Central I ssues in Criminal Theory, Oxford: Hart Publishing, 2002,
ix þ380pp, pbd20.00.
How should one go about writing about cri minal law? In entitling hi sbo ok Cen-
tral Issues in Criminal Theory,
1
W|lliam W|lson implies that he places his enterprise
within a certain niche of writing about criminal law that is somehow to be dis-
tinguished from other kinds of writing about criminal law. The discipline of
criminal law theory, it is sometimes thought, constitutes a distinct part of writing
about criminal law more generally. Why not just Central Issues in Criminal Law?
What is at stake in this label ‘theory’? What is it to be contrasted with?
Perhaps it is to be contrasted with practical writing about criminal law. Perhaps
it might be thought a practical enterprise for criminal lawyers to summarise and
collect the decisions of the courts in an accessible fashion. But that would put
almost all academic criminal lawyers in the theoretical rather than the practical
camp. For surely there is more even to the most traditional textbooks than the
production of an accessible account of what the law is. Most accounts of the crim-
inal law have at least some normative ambitions: they at least attempt to provide
some account of what decisions should be reached in the future. And many ac-
counts of thecriminal law haveat least some explanatory ambitions: they attempt
to explain, perhaps using ratherlimited resources, why the law is as it stands.
Furthermore, there is little reason to think that the courts will best be assisted
simply by collecting together their previous decisions in an acceptable form.
Writing normatively about the criminal law, or explaining why the law is as it
stands, surely ought to be useful to the courts in making their decisions by pro-
viding guidance as to the proper principles underlying criminal responsibility.
And in that sense, writing theoretically about what the criminal law ought to
include might be considered a practical enterprise. For if writing normatively
about the criminal law is to provide the proper kind of support to the courts in
making new decisions, or to Parliament in making new laws, criminal lawyers
need to justify what they recommend. And if explaining why the criminal law
is as it stands is to give some direction to future legaldecisions, such explanations
must be properly defended. But there is nothing more ‘theoretical’ to theoretical
criminal law than the attempt to justify what is argued for deeply, clearly and
convincingly.Given that criminal law is clearly important, howcould one justify
n
Universityof Edinburgh.
1 W|lliam W|lson, Central Issues in Criminal Theory (Oxford: Hart Publishing, 2003). Unattributed
page references areto this book.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(2)MLR 322^338
being anything other than a theoretical criminal lawyer when writing about
criminal law?
W|lson’s book is on the normative rather than the explanatory side of theory.
The ambition is to provide an account which‘discloses [the criminal law’s] under-
lying premises and subjects these and the way they are implemented to critical
evaluation.’
2
That normativeenterprise has,for a long time, had a close relationship
to some issues that are central to philosophy, in particular moral and political phi-
losophy and philosophyof mind.That relationship is clearly evidentin the workof
JeremyBentham,andH.L.A.Hart,tonamebuttwo.However,theproportionof
criminal lawyers who take such philosophical work seriously is increasing rapidly.
Now those who do not claim towrite in the tradition of criminal law theory
might object here that such an enterprise is all right for the academy, but in the
real world the institutional context in which the criminal law is applied cannot
possibly re£ect such philosophical concerns.‘That’s all right i ntheory,’ they might
say, ‘but.y’ This raises the question ^ itself requiring a normative answer ^ of
what constraints are imposed by reality on‘idealistic’ theory.
W|lson’s book is a thoughtful contribution to the developing ¢eld of theoretical
writing about the criminal law. It does not have a single overarching theme, or a
general theory of criminal responsibility. Rather,W|lson considers a number of
the most signi¢cant aspects of criminal responsibility. The focus is relatively
orthodox: there is consideration ofactus reus elements such as causation and crim-
inal omissions, auxiliary o¡ences,
3
mens rea terms and defences. In each case the
normative principles that ought to guide our understanding of such doctrines
are systematically considered.
But this is also a book which, whilst developing such normative principles,
takes seriously the fact that the criminal law operates in an institutional context
that is part ofthe real world.W|lson is aware that the moral foundations of crim-
inal responsibility require substantial and careful investigation, but he also thinks
that such investigation may, in some circumstances at least, reveal the kinds of
theoretical di⁄culties that ‘practical’ criminal lawyers may think best avoided.
For if the in¢nite wanderings of theory expose the criminal law to collapse, we
had better stick with at least something like pragmatism.W|lson is not quite that
pragmatic, as we shall see, but his book is written in the light of thepossibility of
collapse through ethical theory. Whether theory does lead to that possibility is
something I shallcall into question.
THE ETHICS OFATTRIBUTION
Attribution and fault
There are two di¡erent ethical dimensions that might have implications for insti-
tutional decisions about criminal responsibility. In this review I shall consider
28.
3 O¡ences which are parasitic on the creation of a criminal o¡ence. See J. Gardner‘On the General
Part of the Criminal Law’ in A. Du¡ (ed) Philosophya nd the Criminal Law: Principle and Critique
(Cambridge:CUP,1998) 207^208 for a fuller explanation of the term.
V|ctor Tadros
323rThe Modern LawReview Limited 2004
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