Criminal Legal Doctrine

Peter Rush, Shaun Mc Veigh, Alison Young

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9780429824296
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First published in 1997, this volume examines questions of legal doctrine which have never been far from the study of crime. It has not always been able to keep the doctrinal aspects of law clearly in sight. There is always the pressure to turn to philosophy for the consideration of questions of moral and legal responsibility and to criminology and psychology for the analysis of action. The essays collected in this book turn again to questions of doctrine and consider the dogmatic order of law as the basis of the understanding of crime. It is the general argument of this book that without an understanding of the dogmatic order of the legal subject of crime, there will only ever be answers to questions that have never been appropriately asked.

Loosely collected around questions of institution, judgement and address, these essays bring modern historical, doctrinal and cultural scholarship to bear on the practices of legal doctrine. Their aim is to offer an account of criminal law as a practice that institutes, judges and addresses the legal subject through a range of practices and knowledges. These range from the disciplinary knowledges of mental health to the cultural knowledges of femininity and female desire. They include the technical demands of law writing and court room procedure as well as symbolic powers of imagining corporate crime. These all are returned to the practical question of the production of knowledge through legal doctrine.

These essays address a set of questions that have lain dormant in legal scholarship for much of the post-1945 era. In a time when the authority of law is being reconsidered at its foundations, it is appropriate too to reconsider the means and manner of the transmission of criminal law. Without an understanding of the formation of criminal law it is hardly surprising that questions of law reform raise such confusion.

1 Legal and Moral Judgment in the 'General Part'

ALAN NORRIE

[I]ntentional agency provides the paradigm of responsible agency. This is why intention is the central or paradigm determinant of moral culpability.... As with morality, so with law. (Duff, 1990, 102)

We possess indeed simulacra of morality, we continue to use many of the key expressions. But we have — very largely, if not entirely — lost our comprehension, both theoretical and practical, of morality. (MacIntyre, 1985, 2)

Introduction¹

In the dominant view, criminal law contains a 'general part' containing principles and rules which reflect a philosophical understanding of the relationship between the individual, law and the state. This liberal and Kantian understanding is elegantly expressed by Andrew Ashworth (Ashworth, 1991) in the idea of respect for individual autonomy, from which stems desert for punishment. Criminal law is, or should be, reflective of the idea of individual choice, and penal sanction should only follow a freely chosen act. From these premises is born the subjective approach to criminal law principles affirming the need for intention, foresight, knowledge and belief concerning actions and their consequences. These constitute, in Ashworth's terminology, the 'positive fault requirements' which have to be established in order to prove an offence (Ashworth, 1991, ch. 6). Beyond these, however, there exist certain 'negative fault requirements' which operate to supplement and qualify judgments of responsibility that might otherwise be made on the basis of the positive requirements (Ashworth, 1991, ch. 6). Into this category, there fall the various 'defences' — 'excuses' and (on some analyses)² 'justifications' — which may negate responsibility otherwise established on the basis of the positive criteria.

It is this relatively simple picture of a general part consisting of acts and mental elements, qualified by justificatory and excusatory defences, and based upon principles of individual autonomy, that I wish ultimately to examine. This picture does however have one complication worth mentioning, for Ashworth notes 'how individualistic, even atomistic, are the assumptions implicit in the liberal theory which underlies the subjective principles' (Ashworth, 1991, 132). No person is an island, and the subjective approach must sometimes be restricted in the light of the demands of social defence 'which one can expect to suffer in a society based on mutual co-operation' (Ashworth, 1991, 132). Restrictions of this kind in the criminal law directly affect the 'general part', for example in the law of recklessness, where obviousness of risk supplements foresight as a ground of liability.

This approach is attractive both for its image of a society resting on individual autonomy and social cooperation, and for its simplicity. It seems to provide a relatively straightforward basis for organising the criminal law, and it is also compelling because of the relationship it posits between legal and moral judgment. At one level it is an axiom of liberal theory that there is a division between law and morals, so that legal and moral justice are essentially different. Max Weber expressed this in terms of the distinction between law's formal rationality (decisions deduced from existing rules) and substantive rationality (decisions based upon substantive ethical ideas). But it is important to note that the separation of' legal form' and 'moral content' does not mean that legal judgments of responsibility are in this view lacking in moral significance. On the contrary, legal justice, though separated from morals and politics, is still regarded as morally legitimate and legitimating because it is based upon respect for individual autonomy in a world based upon social cooperation. There is therefore, as the prefatoiy quotation from Duff proposes, a homology between the principles of the general part and broader principles of moral justice. The spirit of Kantianism within the criminal law informs this overlap between judgments in law and in morality. Legal judgment is understood as a form of moral judgment — a morality of form — in the liberal tradition.

I want to question the adequacy of the liberal tradition in relation to those aspects that I have said make it attractive. I will argue that the image of individual and social life that it produces is indeed partial; that the simplicity of its schema is ultimately simplistic; and that a key problem stems from the Kantian nexus between legal and moral judgment. I shall make three arguments against the idea that legal judgment shadows or reflects moral judgment. The first is that legal judgments based upon the responsibility of the subject fundamentally fail to capture the nature of moral judgments about responsibility for wrongdoing; indeed, they act as barriers to such judgments. The argument here (which is in the spirit of the prefatory quotation from MacIntyre) starts from the same critical observation as Ashworth, that liberal theory is too individualistic and atomistic in its conception of human subjectivity, but it takes it in a different direction. Rather than moving to social policy ideas as an alternative justificatory basis for legal judgment, I ask how these notions of individualism and atomism structure legal judgments of guilt (section 2). I argue that they lead to a hardening and narrowing, a sclerosis, of judgment that drives a wedge between legal and moral judgment and, in the extreme case, paralyses society's ability to judge crime. I illustrate this by discussing the recent trial of two small boys for the killing of James Bulger.

My second argument is that the legal sclerosis of moral judgment is the result of a historical and political process of suppression of alternative moral and political judgments to those that ushered in our modern world of private property and crime (section 2). The modern legal combination of formalism and individualism (the 'atomism' to which Ashworth refers) involves a complex separation and identification between legal and moral judgment. This is based on the figure of the responsible individual deserving punishment under formal law. Despite the division between law and morals, the form of the abstract responsible individual permits a morality of form to be built on the back of the law. The abstract legal individual, deserving punishment under formal law, appears to 'rise above' morals and politics understood substantively, and therefore to constitute a formalistic legitimating basis for the judgment (and punishment) of conduct.³ I will argue that the legal individual is not morally and politically neutral. It is the site of inclusion of certain moral and political views and exclusion of others. The moral and political neutrality of the legal subject, on which is based the formal morality and legi-timacy of modern legal judgment, is only an appearance, although an appearance which has important practical effects. I will illustrate this in the second section by focusing on a primary separation that occurred in the crimi-nal law at the end of the eighteenth and beginning of the nineteenth centuries, a separation of motive and intention, which helped induce the sclerosis within legal judgment.

My third argument is that the division between legal and moral judgment, whose practical effects and historical roots have already been examined, informs and undermines the logical structure of the law's general part, and especially the particular combination of mental element, justification and excuse (section 3). This conceptual trinity, which is central to law's 'architectonic of judgment', is a historically specific combination of elements which operates to suppress deeper moral and political issues within the law, and to maintain a morality of form. These deeper issues, however, are only artificially repressed and therefore continue to irrupt within sophisticated analyses of the logic of the general part. In this section I consider in particular Antony Duffs work on intention, justification and excuse (Duff, 1990), which I see as an attempt to rationalise and defend legal judgment, but one which exposes in the process its fragile, irrational and repressive character.

Finally, in a concluding section, I will relate the discussion of the nature of legal and moral judgment to broader questions of the possibility of judgment in modern society with reference to themes in the work of Alasdair MacIntyre (MacIntyre, 1985). I begin, however, with a case which illustrates more practically the difference between legal and moral judgment, and the significance of legal judgment in our society.

1. The Guilt of Children and the Sins of their Fathers

Sentencing two 11 -year-olds found guilty of the murder of two-year-old James Bulger, Mr Justice Moreland described their crime as 'a cunning and wicked act of "unparalleled evil and barbarity"'.⁴ Echoing this condemnation of the boys, a senior policeman stated that 'These two were freaks who just found each other. You should not compare these two boys with other boys — they were evil'. As they were driven from the courtroom, their departure was accompanied by shouts of 'kill them' and 'hang them' from an awaiting crowd. In a rare show of moral and social solidarity, a discourse of individual wickedness and evil had united the bench, the police and the crowd in judgment against two boys who, at the age of 10, had committed so terrible a crime. Such a judgment is not incidental to the law, it is sanctioned by it. The law itself allows a 10-year-old to be found criminally responsible, and normal rules of mens rea may apply.⁵ Such a person can be as guilty in the eyes of the law as any adult of the most serious offence. England has a low age of crimi-nal responsibility compared with France (13), Germany (14), Norway (15) or Spain (16) (though not with Scotland where the age is 8), yet there was some concern expressed after the trial that the age of responsibility might not be low enough, for, had the boys been eight months younger at the time of the killing, they could have escaped punishment altogether.

These categorical judgments of guilt and wickedness were undercut as soon as they were uttered. Mr Justice Moreland undermined his own view of the boys' wickedness with his accompanying evaluation (presented as a non-judgment) of their families. 'It is not for me to pass judgment on their upbringing, but I suspect exposure to violent video films may be part of an explanation.' Similarly the Detective Superintendent in charge of the investigation could say both that the boys 'had a high degree of cunning and evil' and that why the boys committed the killing 'will not be known for some time'. Yet, if believed, the former view can be a complete answer to the latter question: the boys killed precisely because they were 'cunning and evil'. Another policeman contrasted what he saw as the chilling coldness of one of the boys in the police station with the evening he went with three other burly officers to pick him up, and found only a small boy in pyjamas coming down the stairs. In order to interview and 'take instructions' from this boy, his solicitor had to sit and play a Gameboy with him for hours.

The legal attitude evinced in these judgments permits a narrow, essentially unreflective attitude to the question of individual responsibility and guilt. It does not look beyond the individual and his or her act. When a person viewed in this way does something terrible, there is no need for recourse to anything other than an abstract metaphysical conception of wickedness to explain what happened. A disembodied concept of responsibility for crime calls forth an equally disembodied explanation of its genesis. In the legal gaze, the boys in this case can be 'evil', yet their childishness evokes a sense of their innocence as victims themselves. They are constructed as juvenile Jekyll and Hydes — unconnected embodiments of good (as children) and evil (as killers).

Of course, other judgments abound in this case. There are the judgments of the child care experts who see 'disordered and emotionally inadequate families' and educational problems, problems of inadequate parents breeding inadequate children in a cycle of deprivation. There are the judgments of the environmentalists who see inner city living, social deprivation and poverty as the root causes. Yet none of these judgments seems entirely adequate either: many families would be classified under the headings of the child care experts, and an increasing number of children live in deprived inner city conditions, yet few commit the kind of crime that these boys did in Liverpool. Somehow, a convincing account evades us. In these circumstances, it is tempting to follow the line argued by some in the government and the media⁶ that this was an isolated event from which there is nothing to be learnt. Yet this is surely unsatisfactory too. The problem is that all these judgments try to understand an event that can only be judged in terms of its synthetic combination of social levels and individual factors united in one incident. It is a 'one-off case' that paradoxically is not a one-off case because it mixes social, educational and familial circumstances with individual chemistry in a way that turns two not uncommon boys into killers. In the words of another 10-year-old Walton kid, 'They were just your average scruff — like the rest of us'. Sometimes 'your average scruff' do cruel, violent things, which is to say neither that most do, nor that those who do are in some way fundamentally different from the rest.

The situation calls for a form of judgment that can unite appreciation of social and political environment with individual agency. Such a form is extremely hard for the representatives of our various institutions — the government, the media, the law, the caring professions, the police — to arrive at. The scale of the tragedy of the death of this child, and the way it happened, sits uneasily with the simplistic judgments that have been made as to the causes and who was to blame. Yet the trial of the boys who killed James Bulger highlights a general issue of judgment about crime and punishment, one that is more starkly seen in this case because of the age and vulnerability of the killers,⁷ as well as their victim. I suggest that the failure to find adequate judgments in such a case is in substantial measure a result of the primacy that society gives to law and legal judgment in the way that it looks at these matters. Law is the organising discourse for a process of judgment that ramifies far beyond the courtroom. Its easy accounts of guilt and innocence and good and bad, echoed by judges and police, and broadcast through the media, constitute society's starting point. Thus The Guardian front page on the day following the convictions headlines its reportage with the moment of criminal guilt ('Boys Guilty of Bulger Murder'), and then, at the foot of the page, begins the analysis which, potentially, subverts the banner headline ('Two Youngsters Who Found a New Rule to Break'). The Guardian is known for its attention to social issues and does at least give these other accounts some significance, but they are afforded a secondary position to that founded upon the law

In any case, because of law's hegemony, such accounts tend to accommodate themselves to the law. Psychiatrists, who could provide an alternative account of crime in such cases, have testified to the law's (recently abandoned) 'knowledge of wrongdoing' test, and, with other behavioural experts, accept the law's standard of normal responsible conduct from which they construct an image of the abnormal individual as the exception to the law's rule. On the other hand, social environmentalists, focusing on the conditions of crime, hardly address the question of why this person committed the crime, leaving the field of individual responsibility unchallenged by default. Politically, this may lead to a dualistic affirmation of the need both for a system of law that is hard on criminals, and a policy to address the criminogenic environment ('tough on crime, tough on the causes of crime'). Legal judgments, in other words, still set the agenda, and structure the field in which other discourses have their play. What they produce, routinely, is a kin...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Contributors
• Editorial Introduction
• 1 Legal and Moral Judgment in the 'General Part'
• 2 The Dummy: An Essay on Malice Prepensed
• 3 The Law of the Land: Criminal Jurisdiction 1747-1908
• 4 From Experts in Responsibility to Advisers on Punishment: The Role of Psychiatrists in Penal Matters
• 5 Words with the Shaman: On the Sacrifice in Criminal Evidence
• 6 Femininity as Marginalia: Conjugal Homicide and the Conjugation of Sexual Difference
• 7 Eloquence and Imagery: Corporate Criminal Capacity and Law's Anthropomorphic Imagination
• 8 Cutting Our Losses: Criminal Legal Doctrine
• 9 Autobiographic Fragments: The Life of Criminal Law
• References