Criminal Law and Ethics: Beyond Normative Assertion and its Critique

Published date01 September 2017
Date01 September 2017
Criminal Law and Ethics: Beyond Normative Assertion
and its Critique
Alan Norrie
Nicola Lacey,In Search of Criminal Responsibility, Oxford: Oxford Uni-
versity Press, 2016, 256pp, hb £75.00 and Lindsay Farmer,Making the
Modern Criminal Law, Oxford: Oxford University Press, 2016, 352pp,
hb £65.00.
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 theor y 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 cr iminal 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 followedby 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.
2ibid, 66.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(5) MLR 955–973
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Beyond Normative Assertion and its Critique
normativity, and political and institutional history.3The 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,4that 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,5there is a split between two ap-
proaches: one in which normative assertion dominates; the other, by way
of reaction, in which a historical and institutional critique of such nor ma-
tivism 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 nor-
mative 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
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. Nor rie, Punishment, Responsibility
and Justice (Oxford: OUP, 2000).
956 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 955–973

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