Responsibility and modernity in criminal law

Journal of Political Philosophy

Volumn 9, Issue 3, 2001, Pages 249-276

  Lacey, Nicola ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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[No Author keywords available]

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EID: 27744500940     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/1467-9760.00127     Document Type: Article

References (154)

1. 'See Nikolas Rose, Powers of Freedom (Cambridge: Cambridge University Press, 1999) particular p. 64
2. Ulrich Beck, Risk Society: toward a new modernity, trans. Mark Ritter (London: Sage, 1992)
3. Pat O'Malley, ed., Crime and the Risk Society (Aldershot: Ashgate, 1998).
4. Peter French, ed., The Spectrum of Responsibility (London: St. Martin's Press, 1991)
5. Gary Watson, ed., Free Will (Oxford: Oxford University Press, 1982)
6. John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge: Cambridge University Press, 1998)
7. Ellen Frankel Paul, Fred D. Miller Jr. and Jeffrey Paul, Responsibility (Cambridge: Cambridge University Press, 1999
8. Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (Oxford: Oxford University Press 1931; first published 1861), p. 141
9. J. B. Schneewind's Argument about the relationship of morality to social change, and about the social significance of the emergence of the idea of morality as self-governance, in The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), pp. 4-6
10. Fania Oz- Salzberger, 'New perspectives on the history of the Enlightenment: can disparate perspectives make a general picture?' Tel Aviver Jahrbuch fflr deutsche Geschichte, 29 (Fall 2000)
11. Michael Moore, Placing Blame (Oxford: Oxford University Press, 1998pp. 246-7
12. John Finnis, 'The priority of persons', Oxford Essays in Jurisprudence, 4th series, ed. J. Horder (Oxford: Clarendon Press, 2000), p. 1
13. Nicola Lacey, 'Philosophical foundations of the common law: social not metaphysical', Oxford Essays in Jurisprudence, 4th series, ed. J. Horder (Oxford: Clarendon Press, 2000), p. 17
14. Nicola Lacey, 'Philosophy, history and criminal law theory', Buffalo Criminal Law Review, 1 (1998), 295
15. Richard Rorty, 'The historiography of philosophy: four genres', Philosophy in History, ed. R. Rorty, J. B. Schneewind and Q. Skinner (Cambridge: Cambridge University Press, 1984
16. Mark Bovens, The Quest for Responsibility (Cambridge: Cambridge University Press, 1998
17. H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968
18. "See Charles Taylor, Sources of the Self (Cambridge: Cambridge University Press, 1989)-a book which, given the close connection between selfhood and responsibility in modern philosophy, has curiously little explicit discussion of responsibility; Schneewind, Invention of Autonomy (a history of modern moral philosophy whose central theme of the emergence of ideas of moral self-governance is highly relevant to the idea of responsibility, yet in which that idea itself does not feature prominently); Rose, Powers of Freedom
19. Peter Wagner, Liberty and Discipline: A Sociology of Modernity (London: Routledge, 1993
20. Tim Murphy, The Oldest Social Science? (Oxford: Clarendon Press, 1998
21. David Garland, Punishment and Modern Society (Oxford: Oxford University Press, 1990
22. John Braithwaite, 'Shame and modernity', British Journal of Criminology, 33 (1993), 1-18
23. Michel Foucault, Discipline and Punish, trans. A. Sheridan (Harmondsworth, Mddx.: Penguin, 1977
24. Hart, Punishment and Responsibility, particularly chs 1, 2, 4-7
25. Again, note the resonance with Maine's idea of a movement from status to contract in Ancient Law.
26. Matthew Hale, The History of the Common Law of England, ed. Charles M. Gray (Chicago: University of Chicago Press, 1971 originally published
27. William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979; originally published 1769), vol.4
28. Nicola Lacey, 'Contingency, coherence and conceptualism', Philosophy and the Criminal haw: Principle and Critique, ed. Antony Duff (New York: Cambridge University Press, 1998), p. 9
29. John. H. Langbein's Important paper, 'Shaping the eighteenth century criminal trial: a view from the Ryder sources', University of Chicago Law Review, 50 (1983), 1
30. George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978
31. Nicola Lacey, 'In search of the responsible subject: history, philosophy and criminal law theory', Modern Law Review (2001)
32. This reference to community and peer judgment should not be taken to imply that the standards invoked were either simple or unitary. Clearly, judgments of character would have been relative to prevailing social structures such as class and gender, with the positive testimony of, for example, a defendant's master or employer weighing particularly heavily in the trial and pardoning processes.
33. David Philips, 'A new engine of power and authority: the institutionalisation of law enforcement in England 1780-1830', Crime and the haw, ed. V. A. C. Gatrell, Bruce Lenman and Geoffrey Parker (London: Europa, 1980), p. 155 at p. 159
34. J. M. Beattie, Crime and the Courts in England 1550-1800 (Princeton, N.J.: Princeton University Press, 1986)
35. I (see on character especially pp. 80-10), and 'Scales of justice', Law and History Review, 9 (1991), 221
36. See Beattie, Crime and the Courts in England and 'Scales of justice'
37. Peter King, 'Decisions and decision-makers in English Criminal Law 1750-1800', Historical Journal, 27 (1984), 25
38. Peter King, 'Illiterate plebeians, easily misled; jury composition, experience and behaviour in Essex, 1735-1815'
39. Thomas A. Green, 'A retrospective on the criminal trial jury 1200-1800', Twelve Good Men and True, ed. J. S. Cockburn and T. A. Green (Princeton, N.J.: Princeton University Press, 1988), pp.254-358
40. In 'Shaping the eighteenth century criminal trial', pp. 82
41. Langbein argues that the Ryder sources show that few trials were contested and operated in effect on the basis of a presumption of guilt pretrial confessions gradually became the dominant mode of proof, with witness testimony as to the confession displacing depositions as the basis for the trial.
42. John H. Langbein, 'Historical foundations of the law of evidence' Columbia Law Review, 96 (1996), 1168
43. J. S. Cockburn and T. A. Green, Twelve Good Men and True, essays by King and Green
44. Douglas Hay, 'The class composition of the palladium of liberty', p. 305.
45. "Beattie, 'Scales of justice'; cf. Langbein 'Shaping the eighteenth century criminal trial', p. 115
46. John H. Langbein's 'The criminal trial before the lawyers', University of Chicago Law Review, 45 (1978), 263
47. Peter King, 'Punishing assault: the transformation of attitudes in the English courts', Journal of Interdisciplinary History, 27 (1996), 43pp. 50-1
48. King, 'Illiterate plebeians, easily misled', pp.285
49. Hay, 'The class composition of the palladium of liberty', pp. 344-5
50. Green, 'A retrospective on the criminal trial jury 1200-1800', p. 392.
51. Both the degree of experience and the social class of jurors varied among the different juries, with the Assize Grand Jury at the top of the hierarchy and the Quarter Sessions Petty Jury at the bottom.
52. On the influence of local knowledge (and hence the existence of local variation)
53. Bruce Lenman and Geoffrey Parker, 'The state, the community and criminal law in early modern Europe', Crime and the Law, ed. V. A. C. Gatrell et al., p. at pp.22-26
54. On the trial process, see David J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800-1865 (Oxford: Clarendon Press, 1998), which argues that the conditions for a fully adversarial trial were not fully in place until the enactment of the Prisoners Counsel Act 1836; and Beattie, 'Scales of justice', pp.223 ff., which notes the earlier introduction in the Treason Act 1696 of a right to counsel for defendants in treason trials. This development appears to be attributable not simply to the class status and social influence of the typical treason defendant but rather to a perceived injustice given the legal complexity of treason trials-an explanation which resonates with the argument about professionalisation which follows note 52 below
55. Langbein, 'The criminal trial before the lawyers', p. 310
56. Langbein traces the growing role of defence counsel from their early eighteenth-century restriction to arguing points of law through to the early nineteenth-century right of cross-examination and finally, in 1836, the right to address the jury. It is interesting to note that legal representation came earlier in civil than in criminal law-suggesting that the process of individualisation, modernisation and professionalisation infused that field more quickly than the criminal law, which was able to rely on community resources of legitimation for a longer period
57. Martin J. Wiener, 'Judges and jurors: courtroom tensions in murder trials and the law of criminal responsibility in nineteenth century England', Law and History Review, 17 (1999), 467-506
58. Beattie, 'Scales of Justice', pp. 231-2
59. King, 'Decision-makers and decision-making in the English criminal Law 1750-1800', pp. 43
60. Which argues that the pardoning process was influenced above all by evidence of previous good character. The phrase 'pious perjury' is drawn from Blackstone's Commentaries, vol. 4
61. It is interesting to speculate whether political trials, and particularly those involving defendants of relatively high social status, followed a similar logic. Though this question is beyond the scope of this paper, it is worth noting that provision was made for legal representation of treason defendants in 1696, and hence over a century earlier than in felony trials
62. J. M. Beattie, 'London juries in the 1690s', Twelve Good Men and True, ed. Cockburn and Green, p. 214
63. Joel Peter Eigan, 'Lesion of the will: medical resolve and criminal responsibility in Victorian insanity trials', Law and Society Review, 33 (1999), 425
64. Eigan shows that up to the mid-eighteenth century, judgments of insanity were based on the lay evidence of friends and neighbours: medical evidence does not begin to be received until 1760, and is not fully established until the creation of the special verdict in 1800. In the eighteenth century, therefore, insanity is seen as visible and manifest to the ordinary community. See also Roger Smith, Trial by Medicine (Edinburgh: Edinburgh University Presss, 1981
65. Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy,Volume 5 of A History of English Criminal Law (Oxford: Clarendon Press,), ch. 6: children only completely escaped criminal liability until the age of 7; from 7-13 they were assumed to be doli incapax unless malice was proven; from the age of 14 they were treated as full adults.1990
66. See Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1982
67. Shaping the eighteenth century criminal trial', p. 123
68. Fletcher, Rethinking Criminal Law, chs 2 and 3
69. Lacey, 'In search of the responsible subject'.
70. K. J. M. Smith, Lawyers, Legislators and Theorists (Oxford: Clarendon Press, 1998
71. King, Hay and Green in Twelve Good Men and True, ed. Cockburn and Green
72. Ferdinand Shoeman, Responsibility, Character and the Emotions (Cambridge: Cambridge University Press, 1987
73. See Peter King, 'Decision-makers and decision-making in the English criminal law 1750-1800', p. 54
74. For example, while those of moderate means are regular prosecutors of 'ordinary' larcenies, offences such as game theft which commanded less consensus-for political reasons or because they were seen as enforcing partial interests-were excluded from coverage by the private prosecution associations set up by groups such as farmers and met with considerable jury resistance to convict. Proceedings of the British Academy, 48 (1962), 1-25
75. This is not to argue that such presumptions invoke ideas of character in the same way today as they did two hundred or even a hundred years ago. In this context, it is interesting that both Stephen (History, vol.2, p. I l l ) and C. S. Kenny, Outlines of Criminal Law, 1st edn (Cambridge: Cambridge University Press, 1902), p. 333
76. Register a prevailing uncertainty about whether the presumption that a person intends the natural consequences of his or her acts operates as a legal or as an evidential presumption. The ambiguity may be taken to suggest that the presumption operated as a bridging concept between character and capacity conceptions of responsibility: see further Lacey, 'In search of the responsible subject'.
77. Nicola Lacey, State Punishment (London: Routledge, 1988
78. Michael D. Bayles: 'Character, purpose and criminal responsibility' Law and Philosophy, 1 (1982)
79. Nicola Lacey, State Punishment
80. John Gardner, 'The gist of excuses', Buffalo Criminal Law Review, 1 (1998), 575
81. Kyron Huigens, 'Virtue and inculpation', Harvard Law Review, 108 (1995), 1423
82. Dan M. Kahan and Martha C. Nussbaum, 'Two conceptions of emotion in criminal law', Columbia Law Review, 96 (1996), 69
83. Nicola Lacey, 'Partial defences to homicide: questions of power and principle in imperfect and less imperfect worlds', Rethinking English Homicide Law, ed. Andrew Ashworth and Barry Mitchell (Oxford: Oxford University Press, 2000
84. Horder, Provocation and Responsibility
85. S. E. Finer, The History of Government III: Empires, Monarchies and the Modern State (Oxford: Oxford University Press, 1997
86. In relation to the administrative apparatus of the British state (and for an instructive corrective to the view that its development is mainly to be attributed to the influence of Benthamite ideas)
87. Oliver MacDonagh, 'The nineteenth century revolution in government: a reappraisal', Historical Journal, 1 (1958), 52
88. Martin J. Wiener, Reconstructing the Criminal (Cambridge: Cambridge University Press, 1990)
89. Lindsay Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge University Press, 1996), pp. 119
90. John Bender, Imagining the Penitentiary (Chicago: University of Chicago Press, 1987)
91. Radzinowicz and Hood, The Emergence of Penal Policy, pp. 35-6
92. J. S. Mill, On Liberty (Harmondsworth, Mddx.: Penguin, 1974
93. Philips, 'A new Engine of power and authority', pp. 161
94. Beattie, 'Scales of Justice' and Crime and the Courts in England, pp.637
95. Lenman and Parker, 'The state, the community and criminal law in early modern Europe', Crime and the Law, pp. 38
96. J. J. Tobias, Crime and Industrial Society in the Nineteenth Century (London: B.T. Batsford, 1967
97. Thomas A. Green, Verdict According to Conscience (Chicago: Chicago University Press 1985), argues that for the 'communitarian view' that the jury's operation in the later modern period was grounded in a high level of consensus about the central norms of criminal laws against the person and against property (a consensus which did not extend to political cases) and about the indices of character and reputation which rendered the application of the capital sentence unjust
98. Green's 'A retrospective on the criminal trial jury', Twelve Good Men and True, ed. Cockburn and Green, p. 358
99. Farmer, Criminal Law, Tradition and Legal Order, esp. ch. 3, on summary jurisdiction; and pp. 119
100. Randall McGowen, 'The image of justice and reform of the criminal law in early nineteenthcentury England', Buffalo Law Review, 32 (1983), 89
101. Alan Norrie, Crime, Reason and History (London: Butterworths, 1993
102. Smith, Trial by Medicine
103. Eigan, 'Lesion of the will', p. 425
104. Jeremy Horder: 'Two histories and four hidden principles of mens rea', Law Quarterly Review, 113 (1997), 95
105. 'In search of the responsible subject'.
106. Wiener, Reconstructing the Criminal, chs 5-7
107. Markus Dubber, 'The right to be punished-autonomy and its demise in modern penal thought', Law and History Review
108. Arguing that Enlightenment conceptions of autonomy have been lost in criminal law's discourses of responsibility since the turn to rehabilitation and scientific models; for critical comment on the historical accuracy of the thesis, see the comment by Michael Meranze in the same issue at p. 157
109. Radzinowicz and Hood, The Emergence of Penal Policy, chs 7-12; for a fascinating discussion of shifting Victorian conceptions of the individual will in the context of alcohol policy
110. Mariana Valverde, Diseases of the Will (Cambridge: Cambridge University Press, 1998
111. Lucia Zedner, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991)
112. Smith's Lawyers, Legislators and Theorists
113. McGowen, 'The image of justice and reform of the criminal law in early nineteenth-century England'.
114. Philips, 'A new engine of power and authority'; and his Crime and Authority in Victorian England (London: Croom Helm, 1977).
115. Radzinowicz and Hood, The Emergence of Penal Policy, passim.
116. Beattie's 'Scales of justice' and Crime and the Courts in England, pp.634
117. Tracing the emergence of the criminal standard of proof, the presumption of innocence and the law of evidence over the whole eighteenth and early nineteenth centuries
118. Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800-1865
119. Langbein, 'Historical foundations of the law of evidence'.
120. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, chs 6 and 7.
121. Smith, Lawyers, Legislators and Theorists, chs 2.B and 12.A.
122. James Fitzjames Stephen, A General View of the Criminal Law of England (London: Macmillian, 1863), provides an interesting example of a view intermediate between the emerging subjectivism and the older conception of criminal malice as 'wickedness'; while arguing that malice, will and intention were distinct from one another, he asserted that all were presumed to exist unless rebutted by special evidence such as evidence of insanity or self-defence. For a more detailed discussion, see Lacey, 'In search of the responsible subject'.
123. On the links between the emerging paradigm of intention and the doctrinal focus on homicide, see Farmer, Criminal Law, Tradition and Legal Order, ch. 5
124. On the contemporary significance of intention see, from different perspectives, Norrie, Crime Reason and History, ch. 3
125. R. A. Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990
126. Stephen's History, vol. 2
127. Kenny, Outlines of Criminal Law, p. 333
128. Carolyn A. Conley, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford: Oxford University Press, 1991), p. 57
129. Philips, Crime and Authority in Victorian England and 'A new engine of authority', esp. p. 159
130. A. W. Brian Simpson's fascinating Cannibalism and the Common Law (Chicago: Chicago University Press, 1984
131. Martha Merrill Umphrey, 'The dialogics of legal meaning', Law and Society Review, 33 (1999), 393
132. Frances Heidensohn, 'Gender and crime', The Oxford Handbook of Criminology, 2nd edn, ed. M. Maguire, R. Morgan and R. Reiner (Oxford: Oxford University Press, 1997), at p. 761
133. Sets out figures showing that in 1984, 84 per cent of the known offenders in England and Wales were male in 1995 the relevant figure was 82 per cent. Heidensohn quite rightly points out that these global figures obscure important differences between men's and women's offending; pp. 764
134. Dorothy Wedderburn et al., Justice for Women? The Report of the Committtee on Women's Imprisonment (London: Prison Reform Trust, 2000
135. Crime and Society in England 1750-1900, 2nd edn (London and New York: Longman, 1996 p. 152
136. Malcom M. Feeley and Deborah H. Little, 'The vanishing female: the decline of women in the criminal process 1687-1912', Law and Society Review, 25 (1991), 719-57
137. Radzinowicz and Hood, The Emergence of Penal Policy, ch. 5, showing that in the first year in which judicial statistics differentiated by gender (1893), women committed fewer than 10 per cent of the recorded convictions for felonious or malicious woundings; 15 per cent of the thefts, and 25 per cent of convictions for drunkenness
138. David Philips' Data for the Black Country in the mid-nineteenth century, which indicate that women made up about one-third of those appearing before the Assizes, appear to indicate that the change must have accelerated during the latter part of the nineteenth century. Such figures must, of course, be treated with caution: on the need for a careful use of statistics in historical research, see V. A. C. Gatrell, 'The decline of theft and violence in Victorian and Edwardian England', Crime and the Law, ed. Gatrell et al., p. 239
139. Gatrell's own figures show women constituting about 30 per cent of those committed for trial for indictable offences in 1805
140. Emsley's data puts the equivalent figures as 27 per cent in 1857 and as 19 per cent in 1890. Furthermore-see Emsley p. 153-women made up only a relatively constant 20 per cent of summary offenders.
141. Lucia Zedner, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, ), pts I and III1991
142. Frances Heidensohn, Women and Crime (London: Macmillan, 1985)
143. Frances Heidensohn, 'Gender and crime' and Lorraine Gelsthorpe, 'Feminism and criminology' both in The Oxford Handbook of Criminology, 2nd edn, M. Maguire, R. Morgan and R. Reiner, pp. 761-511
144. Zedner, Women, Crime and Custody in Victorian England, p. 19
145. Michel Foucault, The History of Sexuality (London: Peregrine, 1976)
146. Ruth Harris, Murders and Madness: Medicine, Law and Society in the Fin de Siecle (Oxford: Clarendon Press, 1989).
147. See on this point Smith, Trial by Medicine, ch. 7, detailing the gradual pathologisation of female crime during the nineteenth century, particularly in relation to pregnancy, menstruation, childbirth and lactation as weakening self-control.
148. A fascinating statistic in this regard is that women made up a majority of habitual offenders convicted over 20 times in the late nineteenth century-see Emsley, Crime and Society in England 1750-1900, p. 153
149. This presumably ties up with the fact that only one-third of the women proceeded against in 1890, as opposed to half of the men, were of previous good character (see Zedner, Women, Crime and Custody in Victorian England, pp. 306-7).
150. Judith Walkowitz, Prostitution in Victorian Society (Cambridge: Cambridge University Press, 1990)
151. Emsley, Crime and Society in England 1750-1900, pp. 153-4
152. Carol Smart, Women, Crime and Criminology (London: Routledge and Kegan Paul, 1976
153. For the legal position in England and Wales, see Lacey and Wells, Reconstructing Criminal Law, ch. 4.III.b.
154. In search of the responsible subject'.