IN SEARCH OF CRIMINAL RESPONSIBILITY: IDEAS, INTERESTS AND INSTITUTIONS
Author: Nicola Lacey
Publisher: London; New York: Oxford University Press, 2016. 200p.
Reviewer: Arlie Loughnan | January 2017
Criminal responsibility is enjoying a brilliant career. Alongside state punishment and criminalisation, it now forms one of the chief planks of criminal law theory. Stimulated by HLA Hart, writing in the mid-century, scholarship on criminal responsibility has burgeoned over recent decades. Nicola Lacey is a leading scholar of criminal responsibility, and a pioneer of the “critical” work on criminal responsibility that has emerged in the last few years. Lacey’s analysis of criminal responsibility has been developed in a body of work undertaken over several years, and culminates in her monograph, In Search of Criminal Responsibility, which is an elegant synthesis and instructive further extension of Lacey’s distinctive intervention into the field.
Criminal responsibility is generally thought about as the form or structure of the criminal law. Conceptualised as “the general part” – in Lacey’s words, “all the rules which shape how the legal system attributes a particular act or omission to a particular individual or group” (p.1) – criminal responsibility represents the bedrock, or foundation, of the criminal law. Criminal responsibility has been most often examined by scholars working in the legal-philosophical scholarly tradition of criminal law theory. In this tradition, criminal responsibility tends to be approached as an abstract matter, with the enquiry framed in terms of rules about accountability that are indexed to moral norms. This moral-evaluative enquiry generates one main guiding question: that question is something like ‘who is responsible under criminal law?’, or perhaps, ‘who should be responsible under criminal law?’.
In Search of Criminal Responsibility drives existing scholarly analysis of criminal responsibility forward on three main fronts. First, Lacey pushes scholars to reflect on the implicit assumptions behind the study of criminal responsibility. Proceeding in a more critical vein than standard legal-philosophical scholarly work on criminal responsibility, Lacey’s analysis proceeds on the basis that criminal legal scholars must move beyond the focus on what criminal responsibility “is”, and ask what it is “for” – a question that exposes its centrality to criminal law as a system of regulation – a system governing individual and group behaviour, and structuring the interaction of people and systems (pp.178-9). Lacey looks beyond conceptions of criminal responsibility (the “nature” of criminal responsibility), to include responsibility ascription practices and the wider processes (such as evidence and proof) relating to evaluation and adjudication of individuals under criminal process. This broader understanding invites different kinds of responsibility questions, such as “in what ways are individuals held responsible under criminal law?” – and this opens the way for multiple responses, or responses which vary from one part of the law to the other (and over time) (p.26).
With its emphasis on the various roles of criminal responsibility – beyond moral condemnation –Lacey’s analysis of criminal responsibility furthers the tradition of what Lacey herself has termed “critical” criminal responsibility scholarship (p.176) that has emerged in recent years. This body of work has been developed by a number of scholars working within socio-historical and social theory disciplinary traditions, including Lacey, Lindsay Farmer and Alan Norrie. Work in the this tradition extends the scholarly lens beyond legal concepts to examine the temporal, institutional and other “conditions of possibility” for the elaboration of ideas such as that of criminal responsibility. This “critical” scholarship subjects criminal responsibility principles and practices to analysis in light of the substantive social, political and institutional conditions under which these principles and practices are given life. It is on this basis that Lacey makes a case that normative concepts such as responsibility are shaped by the given institutional and political context, and the practical or regulatory role of the criminal law (pp.15-16). This approach provides welcome critical purchase on the topic of criminal responsibility.
Second, In Search of Criminal Responsibility advances a sophisticated and unique account of criminal responsibility in criminal law. For Lacey, the significance of criminal responsibility arises from its “distinctive structural roles in legitimating and coordinating patterns and practices of criminalization understood as a form of social regulation” (p.13). This means that criminal responsibility is a symbolic resource for the criminal legal system, enabling it to be regarded as a system of justice, rather than one of sheer force (pp.19-20). For Lacey, legitimation concerns the justification of calling to account individuals and others via criminal process, while coordination concerns what information must be “marshalled” in the service of that legitimated practice of calling to account (p.25). Overall, the coordination and legitimation needs of the criminal law relate to the evaluative, epistemological, social-cultural, and political aspects of criminal law practices (p.14). Lacey argues that criminal responsibility, which is usually thought of solely as a legitimating concept, must be understood in its environment, that is, in the context of criminalisation, which is usually thought of as a positive concept shaped by power and interests (p.15).
Lacey explicates her argument about the coordinating and legitimating functions of the criminal law under a tripartite frame – ideas, interests and institutions – and via a set of case studies that demonstrate how her argument cashes out. For Lacey, it is ideas, interests and institutions that have shaped the changing “conceptual contours” and roles of criminal responsibility over time. In relation to ideas, Lacey argues that there are four main concepts or principles of responsibility attribution operative across criminal law. These concepts or principles form the basis of the way in which individuals are held to account for crimes via the criminal law. They are: capacity (which stands for concern with agency, choice and individual autonomy), outcome (which concerns the social harms produced by crime), and character (which entails an “evaluation or estimation of the quality of the defendant’s (manifested or assumed) disposition as distinct from his or her conduct”), and risk (where risk is calculated in clinical or actuarial terms). For Lacey, systems of criminal law move between these “ideational frames”, producing “a complex and shifting alignment of apparently competing” responsibility practices (p.162).
Taking account practices not typically included in studies of criminal responsibility – notably, pre-trial practices such as policing and prosecution, and post-trial practice such as sentencing – leads Lacey to detect subtle changes over time in ideas about responsibility attribution. For instance, Lacey identifies a displacement of character onto prosecution and sentencing in the early twentieth century, with the rise of the welfare state. In relation to the current era, Lacey diagnoses a hybrid pattern of responsibility attribution: character/risk. Under this hybrid pattern, responsibility is based on “a combination of putative outcome and a new sense of bad character”. Counter-terrorism offences, which are mushrooming in many common law jurisdictions, function as a case study of the renewed relevance of character to criminal responsibility, and its interpolation with risk-based responsibility attribution practices. Counter-terrorism offences may involve considerations of an individual’s motives for conduct, revealing that what is being evaluated is disposition or attitude, rather than intention as such. For Lacey, the current popularity of these sorts of “doctrinally explicit character shortcuts to responsibility” may be seen as “a reverberation of anxiety in a world marked by renewed economic and social insecurity” (p.168).
In relation to interests – “the prevailing structures of power and their dynamics” – Lacey argues that changes in the patterns of interests and power have had “decisive” consequences for doctrines and practices of criminal law (p.2). Lacey suggests that the distribution of economic and political power (and legislation’s domination over common law), cultural and symbolic power, the growth of professions (in particular the legal profession), and the media have all impacted on the attribution of responsibility in criminal law. In particular, Lacey diagnoses the role of political power in the “realignment” of risk and character-based patterns of responsibility attributions taking place in the current era, with the development of pre-inchoate offences, civil-criminal hybrids such as Anti-Social Behaviour Orders (ASBOs) and de facto criminalisation of areas such as immigration speaking to the “perceived interests of the decisive media voter” on whom politicians in the UK and USA depend for election (pp.102-04). Further, Lacey posits that such legal developments might be “a symptom, as well as a cause, of growing social polarization”, in which a significant minority of people in such countries are denied the full spectrum of rights and freedoms (p.106).
As institutions – which include the political system, economic institutions and the legal system – are the means through which the legitimation and coordination roles of criminal responsibility are realised, they also have a crucial influence on legal principles and practices. For example, in relation to the political system, Lacey argues that major changes over the nineteenth and twentieth centuries – including in relation to the structure and power of the legislature, democratisation, the development of the social welfare system in the post-war era, and the more recent indiscriminate recourse to criminalisation for political ends – has produced a situation in which legitimacy depends on both technical and professional control of the interpretation of crime (such as by police and prosecutors), and the maintenance of lay control over its legislative definition (at least in principle).
Finally, Lacey also pushes the boundaries of the scholarship on criminal responsibility on a methodological level. In this book, and in other work, Lacey is concerned to probe the relationship between historical and conceptual dimensions of criminal responsibility. Lacey’s account of criminal responsibility is based on a more historicised appreciation of the development of the relevant principles and practices over time that that countenanced by scholars working in the legal-philosophical scholarly tradition. Lacey identifies four “configurations of responsibility” in play over the period from the early eighteenth century to the early twenty-first century: the dominance of responsibility attribution based on character (in the eighteenth century); the partial eclipse of character and the gradual realisation of capacity responsibility (in the nineteenth century); criminal law divided between capacity and outcome responsibility (from the early twentieth century); and a “further pluralisation” of patterns of responsibility attribution (in the late twentieth century and the early twenty-first century). This sensitive treatment of change in criminal responsibility over time points to the contingency of current arrangements governing criminal law practices.
In her own words, Lacey’s analysis of the coordination and legitimation requirements of the criminal law provides an “analytic framework” for her study of criminal responsibility (p.23). Lacey describes her work as “interpretive”, and states that she employs history in the service of a social scientific account of criminal responsibility (p.12). Lacey’s account of the development of criminal responsibility principles and practices is a component part of a wider analysis, developed both within and outside the book, addressing the role that history and social science play in theorising law. As this suggests, Lacey’s analysis of criminal responsibility operates on two levels – as legal theory and legal history – and In Search of Criminal Responsibility deserves to be taken up and read widely as a stimulating and powerful analysis of responsibility in criminal law.
Dr Arlie Loughnan, Associate Professor, Faculty of Law, University of Sydney
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L Farmer, The Making of the Modern Criminal Law: Criminalization and Civil Order (Oxford University Press, 2016).
N Lacey, In Search of the Responsible Subject: Ideas, Interests and Institutions (Oxford University Press, 2016).
N Lacey “Jurisprudence, History and the Institutional Quality of Law”  101 Virginia Law Review 919.
N Lacey, “Institutionalising Responsibility: Implications for Jurisprudence” (2013) 4(1) Jurisprudence 1.
N Lacey, “Space, Time and Function: Intersecting Principles of Responsibility Across the Terrain of Criminal Justice” (2007) 1(2) Criminal Law and Philosophy 233-250.
N Lacey, “The Resurgence of Character: Responsibility in the Context of Criminalization” in Philosophical Foundations of Criminal Law, eds. Duff and Green (Oxford University Press 2011), 151-178.
N Lacey “In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory” (2001) 64(3) Modern Law Review 350-371.
N Lacey “Responsibility and Modernity in Criminal Law” (2001) 9(3) Journal of Political Philosophy 249-276.
A Norrie, Punishment, Responsibility and Justice: A Relational Critique (Oxford University Press, 2000).