The Limits of Justice: Finding Fault in the Criminal Law
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02097.x |
| Published date | 01 July 1996 |
| Date | 01 July 1996 |
| Author | Alan Norrie |
The Limits
of
Justice: Finding Fault in the Criminal Law
Alan
Norrie”
Introduction: challenging the ‘penal equation’
Crime is a serious social problem to which society does not have a serious answer.
Loud voices say that if our stock responses fail, we need more of the same. It
should be easier to detect and convict criminals, punishments should
be
harsher.
The resulting calls for ‘law and order,’ with emphasis
on
the latter, endorse what
we
may call the ‘penal equation.’ This is the simple formula, ‘crime plus
responsibility equals punishment,’ that has informed our social control practices
for two hundred years. The rationale for this equation is that crime requires
punishment as retribution and deterrence, and criminal justice qualifies individuals
as deserving of the state’s legitimate sanctions. It is this sense of justice,
responsibility and desert, justifying social control through criminal punishment,
that is the focus of this paper.
Criminal justice fixes a badge of responsibility to the individual’s lapel, and
thereby justifies retribution and deterrence. Yet retribution appears to evoke
backward-looking ideas of revenge, while deterrence,
puce
the present Home
Secretary, hardly seems to work.’ Over the past hundred years, reformers have
sought to move the system from these tired rationales. Recently, calls for reparation,
reconciliation and mediation, as well
as
for increased use of diversion, non-
custodial penalties and forms of intermediate treatment indicate the need, perceived
by professionals throughout the system, for changes which can break the iron ri of
what can broadly
be
termed ‘relational ju~tice.’~ Yet, as Sir Louis Blom Cooper has
noted, such developments remain peripheral and for that reason sustain the
mainstream. Mitigating its worst features, they ‘positively acknowledge the
centrality of the courts and prisons as the instrument to be depl~yed.’~
So
what is to be done in terms of challenging this equation?
Is
it possible to
move beyond it? Were we to do
so,
would there be
loss
as well as gain? It
is
easier
to acknowledge the problems associated with the penal equation than to solve
the ‘penal equation.’ Legal justice is contrasted with reintegrative approaches, 5p with
*Drapers’ Professor of Law, Queen Mary and Westfield College, London.
This is
a
revised version of an Inaugural Lecture given at Queen Mary and Westfield College on 24 January
1996.
I
would like to thank Roger Cotterell, Robert Fine, Shelley Lane, Bill MacNeil and Genevra Richardson for
their comments.
Norrie, Crime, Reason and Hisrory (London: Buttenvorths, 1993) ch
10,
esp pp 198-205.
I
argue there
that retributive and deterrence theory have
a
common root in the individualism of Enlightenment
ideology, and this accounts mutatis
murandis
for the different problems both experience. My focus
in
this paper is on criminal law and justice,
so
the discussion will primarily relate to questions that are
usually seen
as
being in their essence retributive.
Braithwaite, Crime,
Shame
and Reintegration (Cambridge: Cambridge University Press, 1989).
Burnside and Baker, Relational Justice (Winchester: Waterside Press, 1994).
For
a
good summary of
the contrasts and similarities between retributive and reparative ideas, see Zedner, ‘Reparation and
Retribution: Are They Irreconcilable?’ (1994)
57
MLR 228.
Blom Cooper, ‘Social Control and Criminal Justice: An Unresponsive Alliance,’ paper presented at
the British Society
of
Criminology Conference 1995,
11.
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The
Limits
of
Justice
them. As Michel Foucault noted,5 the history of penal reform
is
as old as
the
penal
system and
we
should be aware of the pitfalls of grand designs. Blom Cooper calls
for a new ‘theoretical underpinning’ and a new, radical alternative to the criminal
justice system, but he does not actually provide one.6 While sympathetic to the call
for
a
new
theoretical approach, my argument will
be
that a
direct linkage
between
theory and reform may be problematic. That is not, however, to argue that theory
does not illuminate the problems of
the
criminal justice system, or that practice is
not enhanced by it. What is needed, I shall argue, is a theoretical approach that can
encapsulate an
ambivalence
in our assessment of the legal conception of justice,
one that can explain its weaknesses, but also its strengths. It is important neither to
reject totally nor to accept uncritically the conception of justice established within
and by criminal law, and this necessitates a theoretical position which can
take
us
beyond those approaches which make rejection or uncritical acceptance the two
alternative choices available to us.
The approach will
be
to find a theoretical route beyond criminal law and
justice, but to go ‘beyond the
law’
by going ‘through’ it.
So
doing, we achieve a
more complex and sophisticated picture of what is at stake in the ‘penal
equation.’ It
is
one thing, as criminological thought from Italian positi~ism,~ to
Barbara Wootton,’ and now Blom Cooper has done, to dismiss legal ideas of
retribution and deterrence as outdated, inefficient and unenlightened. It is another
to engage with law to show
through that engagement
the limits, but also the
strengths, of legal forms as forms of justice. It is important to stress the double-
sided character of law. A strict legal approach contributes to the failure of
criminal justice to reflect society’s moral (retribution) and practical (deterrence)
needs, but
we
must also recognise the positive side of law. In particular, we
should recognise the strong liberal, and in its own terms progressive, current of
thinking which extols the virtues of law and, to some extent, punishment. This
approach to criminal justice was most influentially expressed by H.L.A. Hart
in
the
1950s
and
1960~~
It underpins the work of criminal law writers like Glanville
Williams, Smith and Hogan,” and Andrew Ashworth.” It insists that it
is
a moral
strength of
the
criminal justice system that it is law based. This is true at the
procedural level, at which civil liberties issues are contested,12 but also in the
substantive law as concerns responsibility and punishment. Liberal theory argues
that we ought to punish only those who act freely, either in terms of their capacity
or control over their actions. Law respects autonomy and personhood, and this is a
value in itself.
The
ambivalence evoked by these ideas stems from the ease
with
which one can
criticise them. What does
it
mean to be a free or autonomous criminal given that
processed crime is clearly linked statistically (and always has
been)
with particular
socio-economic backgrounds? Here
we
encounter the flaw in ‘justice model’
5
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12
Foucault,
Discipline
and
Punish
(Harmondsworth: Penguin, 1977).
Blorn
Cooper’s only real proposal
is
for
a
return to the bipartisan political consensus on criminal
justice issues which existed in the 1970s.
Ferri,
The Positive School
of
Criminology
(Chicago: Kerr, 1901).
Wootton,
Crime and the Criminal
Law
(London: Stevens, 1963).
Hart,
Punishment
and
Responsibility
(Oxford: Clarendon, 1968).
Williams,
Criminal
Law:
The General Part
(London: Stevens, 1961);
Textbook
of
Criminal
Law
(London: Stevens, 1983); Smith and Hogan,
Criminal
Law
(London: Butterworths, 1992).
Ashworth,
Principles
of
Criminal
Law
(Oxford: Oxford University Press, 1991).
Ashworth,
The Criminal Process
(Oxford: Oxford University Press, 1994); Sanders and Young,
Criminal Justice
(London: Butterworths, 1994).
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