In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory
| Published date | 01 May 2001 |
| Date | 01 May 2001 |
| DOI | http://doi.org/10.1111/1468-2230.00325 |
| Author | Nicola Lacey |
In Search of the Responsible Subject: History,
Philosophy and Social Sciences in Criminal Law Theory
Nicola Lacey*
This paper examines the way in which English criminal law’s conception of
responsibility has changed since the eighteenth century, and explores the
relationship between changes in legal framework, changes in processes of
criminalisation and punishment, and broader social, political and economic
changes. It argues that the development of ideas of individual responsibility for
crime are responses to problems of co-ordination and legitimation faced by
systems of criminal law, and that these problems can be expected to change
according to the environment in which the system operates, with important factors
including the distribution of political interests and economic power; the
prevailing cultural and intellectual environment; the organisation and status of
relevant professional groups and the vigour of alternative means of social
ordering. Substantively, the paper explores the hypothesis that criminal
responsibility has shifted from a conception founded in ideas of character to a
capacity-based conception over the relevant period. Methodologically, the aim is
to historicise the structure as well as the content of criminal law within a socio-
theoretic framework, constructing a dialogue between criminal law theory of a
doctrinal and philosophical temper and socio-historical studies of criminal
justice.
At the start of the twenty-first century, it is little exaggeration to say that the
question of responsibility – indeed the question of individual responsibility –
stands as the question of normative criminal law theory. While, significantly,
appellate cases in most legal systems of the common law world are as often
concerned with the interpretation of the conduct element of criminal offences as
with the responsibility condition or the defences,1a brief survey, not only of legal
texts2and theoretical monographs3, but also of draft and model codes such as the
English Law Commission’s Draft Code4and the American Model Penal Code
testifies to the contemporary preoccupation with questions about the fault element
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
350
* Professor of Criminal Law, London School of Economics: Adjunct Professor, Research School of Social
Sciences, Australian National University. I would like to acknowledge, with gratitude, the support of the
Wissenschaftskolleg zu Berlin, where a fellowship during the academic year 1999–2000 provided me with
the ideal environment in which to conduct the research on which this paper is based. My warm thanks also
go to David Soskice for extensive discussion and encouragement; to participants at the Australian Society
for Legal Philosophy conference in April 2000 and the Critical Legal Conference in Helsinki in September
2000 for stimulating feedback; and to Akeel Bilgrami, Simon Bronitt, Peter Cane, Hugh Collins, Lindsay
Farmer, George Fletcher, Martin Loughlin, Tim Murphy, Alan Norrie, Mike Redmayne and Gu
¨nther
Teubner for helpful comments on an earlier version.
1 As well as with the conditions under which collectivities such as corporations can be held responsible.
2 See eg Andrew Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 3rd ed, 1999); Alan
Norrie, Crime, Reason and History (London: Butterworths, 1993); Glanville Williams, Textbook of
Criminal Law (London: Sweet and Maxwell, 2nd ed, 1983).
3 See eg H.L.A. Hart, Punishment and Respons ibility (Oxford: Clarendon Press, 1968); Michael S. Moore,
Placing Blame (Oxford: Clarendon Press, 1998); Stephen Shute, John Gardner and Jeremy Horder (eds)
Action and Value in Criminal Law (Oxford: Clarendon Press, 1993); Anthony Duff (ed), Philosophy and
the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998).
4Criminal Law: Codification of the Criminal Law (Report No. 143, London: HMSO, 1985). A
Criminal Code for England and Wales (Report No. 177, London: HMSO, 1989).
or mental conditions under which it is appropriate to hold an individual responsible
for a crime.
In this paper, I want to raise both substantive and methodological questions
about the treatment of responsibility in criminal law theory. The paper grows out of
a long-term project which has two substantive purposes: first, I am studying the
way in which English criminal law’s conception of responsibility – its very
conception of what it is to be a subject of criminal law – has changed since the late-
eighteenth century; and second, I am exploring the relationship between these
changes in legal framework, changes in processes of criminalisation and
punishment, and broader social, political, cultural and economic changes. This
substantive project is premised on the assumption that criminal law may usefully
be examined not only as an institution in its own right but also as one index of
broad social changes; it is therefore a project in social theory as much as a project
in legal history.
Methodologically, I am also seeking to contribute to a general debate in legal
theory: ie how do the different disciplinary resources of philosophy, history and the
social sciences contribute to our understanding of law? The project here moves
away from a conception of criminal law theory as founded primarily in analytic
philosophy and the systematic analysis of legal doctrine. Rather, my aim is to
historicise the structure as well as the content of criminal law within a broad socio-
theoretic framework, drawing links between the conceptual structure or form of
criminal law doctrine, the development of criminal procedure and penal practices,5
and the substantive social functions which criminal law and punishment have been
expected to perform at different points in history. Hence I am attempting to
construct a dialogue between criminal law theory of a doctrinal and philosophical
temper and socio-historical studies of criminal justice.6
In doing so, I am understanding criminal responsibility as a practice of
attribution which is specific to criminal law yet which is connected with prevailing
intellectual ideas, including – though, obviously, not restricted to – philosophical
theories about the nature of human beings. This specificity and practical
orientation of responsibility in criminal law, I shall argue, entails a relationship
between philosophical and legal conceptions of responsibility which is more
oblique than is generally assumed in criminal law theory. Moreover, it makes it
conceivable that multiple and philosophically inconsistent conceptions of
responsibility may operate within legal practices of attribution without any
necessary illogicality or incoherence in these distinctive practices. My intellectual
starting point is, therefore, sceptical about the propriety of an a priori unitary
approach to theorising criminal responsibility.
My initial hypothesis could be summed up in the following way: the
development of ideas of individual responsibility for crime is at root a response
to problems of co-ordination and legitimation faced by systems of criminal law; the
content and emphasis of these problems can be expected to change according to the
environment in which the system operates, with important factors including the
distribution of political interests and economic power; the prevailing cultural and
intellectual environment; the organisation and relative status of relevant
5 On the need to set the analysis of criminal law doctrine within the context of criminalisation and
criminal justice more generally, see Nicola Lacey and Celia Wells, Reconstructing Criminal Law
(London: Butterworths, 2nd ed, 1998) ch 1; Nicola Lacey, ‘Contingency and Criminalisation’ in Ian
Loveland (ed) Frontiers of Criminality (London: Sweet and Maxwell, 1995).
6 For an elegant statement of a similar methodological approach in relation to public law, see Martin
Loughlin, Sword and Scales (Oxford: Hart Publishing, 2000) ch 2.
May 2001] In Search of the Responsible Subject
ßThe Modern Law Review Limited 2001 351
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