Abstract
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.
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References
See also T. Honderich, op.cit., ch.5, G. Watson, Free Will (Oxford, 1982), and
M. Moore, ‘Causation and the Excuses’ (1985) California Law Review, 73, 1091. Moore’s position is odd in that it is presented as a fundamental critique of attempts to reconcile freewill and determinism (pp. 1114–1128) and is very effective as such, yet ends up defending such a reconciliation through arguments that voluntary action and causation are not incompatible (pp.1132–1137) and a functionalist argument that ‘our moral life’ requires that causation and responsibility be compatible, evidence to the contrary notwithstanding (pp. 1144–1148). I take these arguments up below. Moore’s further difference with the causation theorists, that they fail adequately to rationalise the standard legal excuses, is not a central focus of this chapter, but see below, fn.53.
In general, see H. Packer, The Limits of the Criminal Sanction (Stanford, 1968). In relation to criminal responsibility, see
H.L.A. Hart, Punishment and Responsibility (op.cit);
H. Gross, A Theory of Criminal Justice (New York, 1979), ch.1.
Hart, ibid.,p.22. Strict liability offences are seen as an exception to this rale and are not considered here. Hart’s later more concrete statement of this principle, that ‘unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’ (ibid., p.181) has found considerable support among academic lawyers. See
A. Smith, ‘On Actus Reus and Mens Rea’ in P. Glazebrook (ed.) Reshaping the Criminal Law (London, 1978), and
A. Ashworth, ‘Reason, Logic and Criminal Liability’ (1975) Law Quarterly Review, pp.102–130.
Lynch v D.P.P. [1975] AC 653 at 689.
A. Kenny, Freewill and Responsibility (London, 1978), p.21. In this chapter, I am concerned only with the essentially Kantian’ problem posed by Kenny’s question. There may be other ways of conceiving of the nature of criminal justice, for example, that of the pure utilitarian, which do not consider responsibility as an essentially retributive issue. But here, I concentrate solely upon what may be called the predominant view of the nature of criminal justice.
Cf. M. Bayles, ‘Character, Purpose, and Criminal Responsibility’ Law and Philosophy 1 (1982) pp.5–20.
Op.cit., p.29.
See above, ch.n, text at footnotes 41, 42.
D. Hume, A Treatise of Human Nature (Oxford, 1888), pp.407–412. See also A. Kenny, op.cit., at ch.III, fn.29.
The list includes Mill, Russell, Schlick and Ayer: see J. Glover, Responsibility (London, 1970), ch.3.
Op.cit., p.48.
Hart uses this argument to explain why excusing conditions are allowed in those situations where no rational choice is made either because there was simply no intention to commit an act (mistake, accident), or compulsion (duress, necessity). In the third section, I examine this claim more carefully.
Cf. David Hume: ‘We may imagine we feel a liberty within ourselves; but a spectator can commonly infer our actions from our motives and character; and even where he cannot, he concludes in general, that he might, were he perfectly acquainted with every circumstance of our situation and temper, and the most secret springs of our complexion and disposition. Now this is the very essence of necessity….’ A Treatise of Human Nature (op.cit.), pp.408–9.
Cf. P. Edwards, ‘Hard and Soft Determinism’ in S. Hook, Determinism and Freedom in the Age of Modern Science (New York, 1961);
A. Kenny, Op.cit., pp.25–26.
J. Glover, Responsibility (Op.cit.), pp.76–77.
Ibid.,p.77.
Cf. Moore, Op.cit., fn.1, pp.1142–1144.
Ibid.
Ibid.,p.78, emphasis added.
M.S. Moore, Law and Psychiatry (Cambridge, 1984), p.111.
Ibid., p.361.
Ibid., p.362.
Quoted in Ibid., p361.
Ibid.
See also M.S. Moore, op.cit., fn.1, at pp.1132–1137.
Kenny, op.cit., p.24.
Treatise, op.cit., p.411.
Ibid., p.410.
I do not say that ‘liberty of spontaneity’ is a misnomer in the sense of being incompatible with any form of freedom whatsoever. I do say that it is quite incompatible with any idea of internal, subjective freedom to act or choose. Hume himself denied that any such freedom was possible. In her recent book, State Punishment (London, 1988), Nicola Lacey employs a Humean character conception of responsibility, but concedes in effect that this is a vulnerable basis for legal responsibility, since we are not responsible for our characters. Criminal responsibility then becomes no more than a matter of morally bad luck: op.cit., p.68. Cf. M. Bayles, op.cit., pp.18–19. This is the true logic of the liberty of spontaneity’ viewpoint, which the compatibilists seek to evoke. The compatibilists’ problem is that they seek to answer a ‘Kantian’ question (cf. footnote 5 above) in a Humean way. See also below, text at fns. 51–55.
For general defences of the possibility of determinism against earlier attacks, see Honderich, op.cit., pp. 106–113;
Glover, op.cit.,ch.2.
op.cit., p.24.
Ibid, p.27.
Ibid, p.28.
A. Kenny, Will, Freedom and Power (Oxford, 1975), p.120. Kenny there counters his own admission with the assertion that ‘There is no need to look for some mysterious causal link between the volition and the action…’ and goes on to argue that ‘if there were a causal link between the want and the action, the action would cease to be voluntary’. Neither comment, nor the general drift of the passage, furthers his argument.
Freewill and Responsibility, p.28.
Ibid., p.29. To the contrary, see R. Bhaskar, The Possibility of Naturalism, op.cit., ch.2.
Will, Freedom and Power, op.cit., p.116.
Ibid. pp.91–93.
Op.cit, p.31.
Devlin, J. in Duffy [1969] 1 All E.R. at 932.
Ibid.
Hence the proviso that there must be no ‘cooling off period’ between the provocation and the crime: G. Williams, Textbook of Criminal Law (London, 1978),p.481.
Daniel McNaghten’s Case 10 Cl. and Fin., p.200.
This is not the case under a test such as Durham 214 F.2d (D.C. Cir.1954) where the legal discourse has been invaded by psychiatry, but here the criticism that is made is precisely that the legal criterion relating to the mental element in agency, mens rea, has been abandoned. See M.S. Moore, op.cit.,ch.6.
Lord Morris in Lynch [1975] A.C. at 670.
Cf. G. Williams, op.cit, p.578;
Wasik, ‘Duress and Criminal Responsibility’ [1977] Crim. L.R. 453–4. Note however, Dennis’s qualification of this point in his ‘Duress, Murder and Criminal Responsibility’ (1980) Law Quarterly Review 208, at pp.224–228.
See H. Gross, A Theory of Criminal Justice (New York, 1979), ch.1.p.22. Strict liability offences are seen as an exception to this rale and are not considered here. Hart’s later more concrete statement of this principle, that ‘unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’ (ibid., p.181) has found considerable support among academic lawyers. See
See footnote 3, above.
Lord Simon in Lynch at p.690;
Wasik, op.cit., pp.456–7;
Smith, op.cit., p.105.
Lord Simon in Lynch, at 686.
Wasik, op.cit., p.456.
The quoted words are those of Lord Morris in Lynch at p.670; the concern for consistency is shared by the minority judges in that case.
Lynch at p.686.
‘Fear of violence does not differ in kind from fear of economic ills, fear of displeasing others, or any other determinant of choice’, says Williams, but ‘A line must be drawn somewhere, for there are always reasons that impel men to break the criminal law’: Criminal Law: the General Part (London, 1961) pp.751,758. He does not say how the line should be drawn. Cf. L. Vandervort, ‘Social Justice in the Modem Regulatory State: Duress, Necessity and the Consensual Model in Law’ (1987) Law and Philosophy 6, 205, at 220: It must be recognised that choices made by individuals are often influenced and sometimes ‘dictated’ by socio-economic factors that are themselves the product of collective societal decisions’. See also a recent effective analysis of the ‘crack’ problem in the U.S. in these terms by M. Davis and S. Ruddick: ‘Los Angeles: Civil Liberties Between the Hammer and the Rock’ (1988) New Left Review 170, 37.
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.
G. Fletcher, Rethinking Criminal Law (Boston, 1978), p.800. The character conception is used as an alternative to the standard freewill conception as a means of grounding individual responsibility, i.e. it is used in a ‘Kantian’ rather than Humean way.
Fletcher concedes however that the criminal law in fact makes no real investigation of character, limiting its investigation to the wrongful act before the court. The principle of legality, he claims, safeguards the accused’s privacy, and therefore arrests enquiries into circumstances beyond the act itself. This is odd: the law refuses to do justice to the individual in the sense of resolving desert and responsibility out of respect for the individual’s privacy. But there is surely a greater lack of respect for the individual in the failure to punish justly than in the invasion of his or her privacy.
Ibid., p.801. Moore (op.cit., pp.87–88) has a parallel problem in separating out the effects of compulsion situations on criminality, which the law recognises, from the effects of a bad character, which it does not. He argues that the ability to be a practical reasoner, rather than judgements as to the nature of character, lie at the heart of criminal responsibility, and that what justifies the duress defence is that threats represent an impediment to practical reasoning. But then he must explain why the individual’s character, which could equally be thought of as an impediment to reasoned action, is not regarded as such by the law. His solution is to distinguish the two by the convenient but unconvincing device of a ‘stipulative’ argument that character does not constrain practical reasoning, while compulsion does. Yet Moore is committed to a realist conception of moral responsibility (op.cit., fn.1, pp.1122–1123). He repeats the move in the later work by distinguishing between two meanings of ‘character’ without telling us why we should opt for the one that is compatible with his analysis rather than the one that is not (see p.1130, at fn.108). For further discussion of Moore,
R. Clarke and D. Cornish, The Reasoning Criminal (New York, 1986), pp.220–225.
Ibid., pp.801–2.
Moore adopts a similarly complacent reductionist defence in op.cit., fn.1, pp.1144–1148. See also M. Kelman, A Guide To Critical Legal Studies (Cambridge, Mass., 1987), p.318. Cf. fn.26, above.
The Brixton Disorders10–12 April 1981 (Cmnd.8427).
Op.cit., p.16.
Ibid.,p.37. This comment rests uneasily with Lord Scarman’s distinction elsewhere between ‘causes’ and ‘conditions’ (p. 16). When he writes of social features being ‘conditions’ which predispose to rioting, and not causes in themselves, I take him to mean that those social conditions he identifies are necessary, but not sufficient, causes of disorder.
Ibid., p.14.
D. Hay, ‘Property, Authority and the Criminal Law’, in Hay et al, Albion’s Fatal Tree, p.44.
See Hale, Pleas of the Crown, 1, 54; and especially the Seventh Report of the Criminal Law Commissioners (1843), p.29.
P. Devlin, Samples of Law Making (Oxford, 1962) p.73.
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.’
Above, pp.8–9.
See L. Radzinowicz, Ideology and Crime (London, 1966),
N. Kittrie, The Right to be Different (London, 1971),
D. Garland, Punishment and Welfare (op.cit.),
J. Donzelot, The Policing of Families (London, 1980).
See Fletcher, quoted above at fn.54.
Again, Fletcher’s words, quoted above at fn.53.
In Mind (1951); discussed in P. Edwards, ‘Hard and Soft Determinism’ in Hook, op.cit., pp.122–123.
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.
Op.cit., p.22.
‘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.
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Norrie, A.W. (1991). Juridical Individualism, Individual Freedom And Criminal Justice. In: Law, Ideology and Punishment. Law and Philosophy Library, vol 12. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-0699-0_7
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