The Responsible Subject As Citizen: Criminal Law, Democracy And The Welfare State
| Author | Peter Ramsay |
| Date | 01 January 2006 |
| Published date | 01 January 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00575.x |
The Responsible Subject As Citizen: Criminal Law,
DemocracyAnd The Welfare State
Peter Ramsay
n
This paper seeks to explain two problemsposed by the history of criminal lawdoctrine by situat-
ing them in the context of the political sociologyof citizenship. First, the paper outlines the logi-
cal connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and
the contemporaneous emergence of universal political citizenship. Secondly, it argues that sub-
jectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of reg-
ulatory strict liability law within the terms of ‘moderndemocratic citizenship’ as the latter were
conceptualised byT. H.Marshal l.Fi nally, by means of a comparison with Alan Brudner’s recent
philosophical rationalisation of the modern criminal law, it proposes that situating the criminal
law in its environment of citizenship will help us to understand better the tensions that underlie
contemporarychalle nges to its doctrine.
INTRODUCTION
‘At the start of the twenty-¢rst century, it is little exaggeration to say that . . . the
question of individual responsibility. . . stands as the question o f normative crim-
inal law theory.’
1
Most postwar theorising about the substantive criminal law has
been preoccupied withthe question of fault, the mental element and the elabora-
tion of the law’s ‘general part’.The starting pointfor most of this type of theory ‘is
that there is a special relationship, or ‘‘natural a⁄nity’’ between criminal law and
moral philosophy’.
2
In its most in£uential form, dubbed ‘orthodox subjectivism’,
3
this type of theory has dominated law schools and the Law Commission alike.
However, in recent years, as the scope of the criminal law has expanded,
4
and its
e¡ectiveness in deterring crime come to be doubted,
5
intellectual con¢dence in
orthodox subjectivism has been shaken.
6
Over the past 20 years, orthodox theory
has been subjected to a barrage of criticism.This criticism has included, in parti-
cular, the theory’s decidedly partialgrasp of the actual criminal law, and its lack of
attentionto the law’s historical development.
7
n
Doctoral candidate, King’s College London. My thanks to Professor Alan Norrie and two anony-
mous referees forthe ircomments on, and criticisms of, earlier drafts of this paper.The errors and opi-
nions are my own.
1 N.Lacey,‘In Searchof the Responsible Subject; History, Philosophy, and Social Science in Crim-
inal LawTheory’ (2001) 64 MLR 350, 350 (emphasis original).
2 L. Farmer, Criminal Law, Tradition and LegalOrder (Cambridge: Cambridge University Press, 1997)
5; see also N. Lacey,‘Contingency, coherence, conceptualism’in A. Du¡ (ed), Philosophy and the
Criminal Law,(Cambridge: Cambridge University Press,1990)38.
3 A. Du¡, Intention, Agency and Criminal Liability (Oxford:Blackwell, 1990).
4 A. Ashworth,‘Is the criminal law a lostcause?’ (2000) 116LQR 225.
5 Farmer, n 2 above,4^7.
6 I. Dennis,‘The critical condition of the criminal law’ [1997] Current Legal Problems 213.
7 These criticisms are reviewedby Lacey,n 1 above, 354^362.
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Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(1) MLR 29^58
This paper is addressed to a question which arises from these criticisms of
orthodox theory as partial and ahistorical: how and why did subjectivist theory
become the orthodoxy? Why did the idea of the morally autonomous and
responsible subject come to occupy the heartof criminal law doctrine in the sec-
ond half of the twentieth century, despite its irrelevance over large swathes of the
criminal law in practice? In addressing this problem, Nicola Lacey has suggested
that the point to set out from is that:
The developmentof i ndividual responsibility for crime is at root a response to pro-
blems of coordination and legitimation faced by systems of criminal law; the con-
tent and emphasis of these problems can be expected to change according to the
environment in which the system operates .. . This starting point implies that the
most illuminating approach to criminal responsibility will be both a multi-
disciplinary and a cross -institutional one.
8
Lacey identi¢es three areas as being of particular interest to the broad interdisci-
plinary project. First, the ‘emergence of a conception of increasingly egalitarian
citizenship’; second,‘the growing in£uence of the medical sciences and psychol-
ogy on criminal law’s understanding of human behaviour’; and third, the ‘inter-
action between the rapidly expanding scope of criminal liability during the
nineteenth century. . . and the doctrinal arrangements forascribing responsibility
to those accused of crimes’.
9
In this paper I will outline some logical connections
between the ¢rst and third of these areas and the development of criminal law
doctrine. I will investigate the in£uence on the criminal law’s historical develop-
ment of one particular aspect of its ‘environment’, the political sociology of citi-
zenship. In particular, I seek to show how T. H. Marshall’s tripartite concept of
‘modern democratic citizenship’ can furnish an explanation of both the historical
emergence of the responsible subject in criminal lawand the central contradiction
of modern criminal law theory that appears in thewake of this development.
This paper is not acontribution to the history of criminal law since it does not
add to the historical evidence regarding criminal law doctrine. Nor is it a direct
contribution to normative criminal law theory. Rather, it attempts to provide a
frameworkof political sociology in which we can make se nse of what we already
knowabout the history and the theory ofthe substantive criminal law. My aim is
to explain howthe antithetical formsof criminal l iability prominentin the twen-
tieth century are reconciled in the citizenship concept of the welfare state, and
how that mayhelp us to understand the substantive law’s current moral andintel-
lectual di⁄culties.The central concern of this paper is the relation of criminal law
to the post-war citizenship concept, and this relation is abstracted fromthe many
other aspects of social and intellectual history which are relevant to, and which
complicate, the criminal law’s development. This is done not in order to deny
the signi¢cance of these other dimensions to a full historical account of the sub-
stantive criminal law, but rather to make as clear as possible what the citizenship
8ibid, 351.
9ibid,362.
The Responsible Subject as Citizen
30 rThe Modern LawReview Limited 2006
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