Liberalism, Normative Expectations, and the Mechanics of Fault
| Published date | 01 May 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00592.x |
| Date | 01 May 2006 |
REVIEWARTICLE
Liberalism, Normative Expectations, and the Mechanics
of Fault
Ky r o n H u i ge n s
n
Jeremy Horder,Excusing Crime, Oxford: Oxford University Press, 2004,xx þ295pp,
hb d50.00.
INTRODUCTION
Of the several major concerns in H. L. A. Hart’s essays on punishment, liberalism
is among the most prominent. Hart’s description of criminal law as a choosing
system under which preferences are more fully realised; his account of excuse as
a protection of the individual against the state; his insistence that it is not only
meeting a standard, but also the capacity to meet a standard that concerns us in
assessing guilt ^ these are the passages that stand out.
1
The essays in which they
appear, however, are not pieces of liberal advocacy. Instead, Hart is engaged in
drawing the connections between what we take to be important in criminal law
and what we take to be important in our governance by law generally. He gener-
ates hisliberal account of the excuses, it is worth recalling, bycomparing punish-
ment rules to rules governing contracts and wills.
2
Hart’s attentionto liberalism is
due to his consideration of the internal point of view, not to his own political
liberalism.
Jeremy Horder’s new book, Excusing Crime,
3
has a di¡erent agenda from Hart’s.
While he draws on Hart’s account of the excuses, Horder is committed to a nor-
mative jurisprudence of a kindassociated with Ronald Dworkinand John Finnis.
In the courseof developinga self-consciouslyliberal conceptionof the excuses, he
relies heavily on the importance of recognising ‘su⁄ciency conditions’ for excuse.
These consist of recognising ‘strategic concerns’ about protecting distinctively
legal ‘common goods’ of society (pp16^17). For Horder, an adequate account of
excuse asks, not whether these values are important, but instead whether these
values are well served. Horder writes: ‘In very general terms, a strategic concern
is a concern about the need to maintain the integrity and £ourishing of a com-
mon good that is supported(a ndperhaps, in part, de¢ned) by law’ (p 15)and that,
‘The su⁄ciency conditions that excuse claims must satisfy to be worthy of legal
n
Cardozo LawSchool.
1 H. L. A. Hart,P unishment and Responsibility, (Oxford:Oxford University Press,1968) 45^48, 181.
2ibid 34^35.
3 J. Horder,Excusing Crime(Oxford: OxfordUniversity Press,20 04).Pagereferences in the text are to
this book.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(3)MLR 462^479
recognition are partly constitutive of a morally sound and £ourishing criminal
law, and can thus themselves have intrinsic value’ (p 2).
4
Over half the book is
devoted to advancing three proposed criminal law defences, and there is a strong
suggestion throughout that recognition of these defences is required by any ade-
quate account of excuse. Horder writes:‘I hope to underscore the claim that doc-
trinal minimalism has no special connection with the criminal law systems of
liberal societies, by suggesting three ways in which the law should be developed
to become distinctively liberal in its excusatory outlook’ (197). Horder cites Finnis
for his de¢nition of a‘common good’ (pp 15^16), and argues that his proposed
defences meet the ‘su⁄ciency conditions’ at least in part because they serve the
Dworkinian legal values of ‘equal concern and respect’ (p 4).
I shall argue below that, while Horder is not engaged in mere liberal advocacy
in Excusing Crime, hi s project of viewing the excuses t hrough the lens of liberali sm
is u nnecessarily parochial. This parochialism probably is an unintended conse-
quence of engaging in the normative jurisprudence that prevails throughout
the ¢eld of punishment theory, but it is not any less a mistake. It is also not
the only mistake in the book. The second mistake, I shall argue, is Horder’s
misunderstanding of John Gardner’s normative expectations account of excuse.
These two mistakes are related, in that Horder’s basic contention that we need
liberalism to understand the excuses rests in part on his erroneous contention
that Gardner’s account is inadequate. A correct version of Gardner’s theory
can be combined with Aristotelian and character accounts of excuse (which
Horder also considers and rejects) in a way that fully accounts for Horder’s com-
mon goods and su⁄ciency conditions ^ without, however, making their recog-
nition and a resulting £ourishing of criminal law a necessary feature of the
excuses as a theoretical matter. This analysis of Horder’s liberal conception of
excuse and aproposed alternative forms the greater part of this review, but I shall
also consider two of Horder’s three proposed excuses: a second degree o¡ence
based on‘diminished capacity’and a double pronged excuse for demands of con-
science.The ¢rst of these rests on an incoherent theoretical hybrid that purport-
edly combines excuse with the denial of responsibility. The second proposal
su¡ers from Horder’s misunderstanding of the connection between excuse and
justi¢cation.
COMPETING CONCEPTIONS OF EXCUSE
In the central chapter of Excusing Crime, Horder considers competing conceptions
of excuse: the classical acc ount, the character account, the normative expectations
accountadvanced byJohn Gardner, and a capacities account attributed toH. L. A.
Hart. Horder rejects the ¢rst three and builds his liberal account of excuse on the
fourth.
4 In other words, he undertakes a directly evaluative approach such as that of Fin nis and Dworkin,
instead of an indirectly evaluative approach such as that of Hart. J. Dickson, Evaluation and Legal
Theory(Oxford: Hart Publishing, 2001)51^56.
Kyron Huigens
463rThe Modern LawReview Limited 2006
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