Juridical Individualism, Individual Freedom And Criminal Justice

  • Alan W. Norrie
Part of the Law and Philosophy Library book series (LAPS, volume 12)


The characteristic positions in the modern debate about punishment are essentially concerned with the second of the two antitheses identified in the first chapter between juridical individualism and state power, in the form of the attempt to reconcile a utilitarian philosophy of punishment with principles of individual justice. Because the modern philosophy of punishment is founded on the rejection of the principles of individual right, from the time of the English Idealists onwards, the ideology of juridical individualism must play second fiddle to the ideology of the collective wellbeing. The ensuing ‘reconciliations’ of utility and individual right are attempts to have it both ways which must fail because of the antithetical nature of the two positions that are to be reconciled. What, it may be asked, has the modern philosophy of punishment done with the first antithesis between abstract individualism and concrete individuality? Has it, as perhaps the preceding two chapters suggest, simply been quietly buried and forgotten? Were it possible so to ignore one of the two major antitheses of law in capitalist society, the fundamental connection between law, legal ideology and capitalism posited in chapter I would be considerably undermined, for it would suggest that the antithesis is not so fundamental as has been indicated.


Criminal Justice Individual Freedom Legal Responsibility Criminal Responsibility Legal Discourse 
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    Moore (op.cit. at fn 18, pp.362–364, at fn.1, pp.1129–1132) argues that compulsion is not the same as causation. I would agree to this extent: that while not all causations are compulsions, all compulsions are causations. That is, compulsion is (only) one type of causation. The problem for the legitimation of the law is to explain why it should distinguish one sort of causation from another.Google Scholar
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    This argument has been well made in relation to the mitigatory plea of diminished responsibility by R. Sparks in ‘Diminished Responsibility in Theory and Practice’ 27 Modern Law Review (1964), p.9. To the response, that may seem commonsensical, that freewill and determinism may be a matter of degree rather than ‘all or nothing’ (N. Walker, Crime and Insanity in England and Wales, Vol.1 (Edinburgh, 1968) p.162), Moore correctly answers that believing in freedom or determinism is like becoming pregnant rather than going bald (op.cit., pp.355–356, see also op.cit., fn. 1, pp. 1114–1118). One either believes in causal conjunctions as the basis for human behaviour or one does not: ‘There is no sense to the idea of a little bit of either causation or of freedom. It makes sense to say that we are determined or that we are free, but to speak of being partly determined or partly free makes as much sense as speaking of being partly pregnant.’Google Scholar
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    I have developed this argument slightly further in terms of a distinction between ‘situated’ and ‘abstract’ (juridical) rationality, drawing upon Bhaskar’s The Possibility of Naturalism, (op.cit.), ch.2 in my ‘Freewill, Determinism and Criminal Justice’ (1983) Legal Studies, 69–73 and ‘Practical Reasoning and Criminal Responsibility: a Jurisprudential Approach’ in D. Cornish and R. Clarke, op.cit., at fn.50. The latter analysis implicitly agrees with Moore (Law and Psychiatry, op.cit.) that the analysis of practical rationality offers a better way of understanding criminal conduct but rejects his abstract conception of practical reasoning, which ends up replicating some of the same contradictions as the compatibilists on issues such as duress (see above, fn.53). This is because Moore, like the compatibilists, wants to legitimate the operation of legal forms of criminal justice, and therefore divorces the ability to be a practical reasoner from the social context within which practical reasoning occurs.Google Scholar
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    ‘Thus the commitment of the legal form to individuality is ultimately illusory because the individuality it recognises and presupposes is in fact an alienated form of individuality - individualism.’ I. Balbus, ‘Commodity Form and Legal Form’ in C. Reasons and R. Rich, The Sociology of Law: A Conflict Perspective (Toronto, 1978), p.80.Google Scholar

Copyright information

© Kluwer Academic Publishers 1991

Authors and Affiliations

  • Alan W. Norrie
    • 1
  1. 1.School of LawUniversity of WarwickCoventryUK

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