Thomas Andrew Green, Freedom and Criminal Responsibility in American Legal Thought, New York: Cambridge University Press, 2014, xiii + 504 pp, hb £55.00, pb (2015) £22.99.

AuthorNicola Lacey
Date01 November 2016
Published date01 November 2016
DOIhttp://doi.org/10.1111/1468-2230.12222
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REVIEWS
Thomas Andrew Green,Freedom and Criminal Responsibility in American
Legal Thought, New York: Cambridge University Press, 2014, xiii +504 pp,
hb £55.00, pb (2015) £22.99.
‘From the Progressive Era forward, the rhetoric of the social and psychological
causes of crime have vied – in the law, in the media, in ourselves – with the
rhetoric of, and ineradicable belief in, human freedom. This ceaseless battle
is only partly contained by our explanations to ourselves and others for the
consciousness of freedom or by the view that, although determining factors
exist, they are either compatible with moral and legal responsibility or are
typically not all-encompassing: that we - and those whom we blame – have the
wherewithal to resist, even if we often lack the ability to draw the line between
the resistible and the irresistible with certainty.’ (479-480).
So Thomas Andrew Green summarises the main preoccupation of this
extended and meticulous meditation on the history of legal academic thought
about criminal responsibility in the United States. Focusing on the ‘long
twentieth century’ from the rise of the Progressive Era to the triumph of
neo-retributivism, Green structures his intellectual history in three main parts
or, as he puts it, essays: the ‘age of Pound’, stretching from the early recep-
tion of scientific ideas into debates about responsibility in the late nineteenth
century through to the work of scholars such as Sheldon Glueck and John
Henry Wigmore in the 1920s; a ‘forgotten’ period from the 1930s to the 1960s
gradually marked by utilitarian thinking, alongside a resurgence of appeals to
conventional morality as a necessary component of responsibility-attribution;
and the last decades of the twentieth century, which saw a revival of retribu-
tivist thinking, much of it framed within broadly compatibilist philosophy.
The first era was marked by optimism about the capacity of science to inform
and shape the law, and a broad aspiration to render and understand the law
in (social and psychological) scientific terms rather than, more traditionally, as
one of the humanities. This was displaced however by a reaction against some
of the more counter-intuitive and potentially oppressive aspects of scientific
progressivism, ushering in a renewed recognition of law’s need for legitimation
in terms of conventional morality, with scientism re-conceived in (potentially
more common-sense, deterrence-oriented) utilitarian ter ms. But continuing
doubts about scientism, notably in the guise of the rehabilitative ideal and the
potentially counter-conventional and (hence) counter-intuitive implications
of utilitarianism itself, under pinned a renewed emphasis on justice which –
ironically in view of the fact that one of its main advocates, H. L. A. Hart, was
a vigorous anti-retributivist – laid the foundations for the retributive revival,
and a decisive reassertion of law as one of the humanities rather than one of
the social or psychological sciences. Crucially, each of these broad reactions
and counter-reactions was fundamentally driven by the tensions inherent in
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016) 79(6) MLR 1137–1151
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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