Within In Search of Criminal Responsibility: Ideas, Interests and Institutions, Nicola Lacey investigates changing understandings of criminal responsibility in England and Wales from the mid-eighteenth century to the present, reflecting on its current place within legal, social, political and cultural frameworks. This is an accessible and erudite account that represents an important and illuminating divergence from traditional scholarship, finds Caroline Henaghan.
In Search of Criminal Responsibility: Ideas, Interests and Institutions. Nicola Lacey. Oxford University Press. 2016.
In this important, engaging and timely book, In Search of Criminal Responsibility: Ideas, Interests and Institutions, Nicola Lacey offers not only an illuminating historical account of the development of the modern concept of criminal responsibility, but also an authoritative and searching ‘socio-theoretic’ inquiry of its current place within a series of broader legal, social, political, economic and cultural frameworks. Building on her prodigious portfolio of research on the concept of responsibility, Lacey adroitly encapsulates the changing social nature of responsibility as a concept grounded in the practice of law in a highly intelligible, accessible and erudite monograph.
The book exhibits Lacey’s move away from the influence of the legal-philosophical tradition of theorists such as H.L.A. Hart, Michael S. Moore and Victor Tadros, who approach criminal responsibility as an abstract phenomenon. Whilst acknowledging continuing scholarly assumptions about the existence of a unitary metaphysical truth to the concept of criminal responsibility, Lacey argues in support of the legal-philosophical pursuit of a ‘socially realistic development of normativism’ (drawing on MacCormick and Weinberger 1986, 6).
The basic premise of Lacey’s argument is that to understand what responsibility actually is, we must first appreciate what it has been for at different times and in different places. Her core proposition is that:
Criminal responsibility, in short, is an idea which is located within a social practice of criminalization, which itself is necessarily located within an institutional framework […] Since that framework conditions and shapes the contours of responsibility as an operational idea in criminal law and criminal justice, that framework must itself be an object of interest to a descriptive or classificatory theory of criminal responsibility (190).
In making her case, Lacey attends to the specific dimensions of criminal law and procedure in England and Wales. While many legal scholars acknowledge that criminal responsibility is ‘crucial to the core modality of criminal justice’ (1) and a touchstone within modern criminal law, there is still significant disagreement regarding the nature of the concept. Hence Lacey’s pilgrimage in search of responsibility.
To assist us in understanding her enterprise, in Chapter One Lacey references the vast and diverse jurisprudential literature on the subject: from treatises focusing solely on conceptual analysis of criminal responsibility to historical accounts of its development and social commentaries relating to criminal justice and procedure. She also identifies a small but burgeoning strand of recent literature that attempts to bring the various genres of legal scholarship on responsibility into dialogue (11). Lacey places her own text in this category in providing the foundational principles that underpin her arguments and drawing upon it in her case studies on responsibility analysis in subsequent chapters.
Image Credit: (Clyde Robinson CC BY 2.0)
Lacey proposes two straightforward assumptions on which to ground her socio-legal account of contemporary criminal responsibility jurisprudence. Firstly, that responsibility is best regarded as an amalgam of concepts that act to both legitimate and coordinate the criminal law per se: the doctrine of individual criminal responsibility legitimates the criminal law as a form of state power; and the state constantly seeks to coordinate the behaviour of the populace in order to achieve social compliance with the law. Secondly, we can identify three main contextualising influences espoused in the book’s subtitle: ‘ideas’, ‘interests’ and ‘institutions’. Each has significant bearing upon the concept of responsibility, forming the focus of the book’s skilfully structured central chapters.
Chapter Two, ‘Ideas’, considers four principal ideational frameworks that have shaped the historical development of criminal responsibility-attribution in England and Wales. Whilst many might consider the idea of ‘capacity’– an individual’s agency, choice and personal autonomy – to be the ‘jewel in the crown’ (175) and the predominant mainstay of modern criminal responsibility, Lacey argues that if one looks to legal history, this assumption is misguided. Of equally longstanding importance, albeit at different points in time, are the sets of ideas concerned with an individual’s ‘character’, as the conception of how criminal responsibility might attach to particular persons and identities as well as ‘outcome’ analysis or the potential social harms that an individual brings about through their actions. To these established ideas, Lacey also adds a more recent conceptualisation of criminal responsibility as ‘risk’: social constructions of liability grounded in appraising the threat posed by an individual.
Chapter Two’s case study concludes by demonstrating that there has been a co-existence of these theories across different historical epochs in England and Wales, despite the continued salience of capacity in criminal theory. So, for example, character, outcome and risk-based theories hold some procedural sway, particularly when it comes to the prosecutorial and sentencing stages of criminal responsibility-attribution. Ultimately, however, the critical focus for Lacey is that:
Legal ideas about responsibility are the product of a much broader set of ideas about the self and about relations between the self and society […] Hence they need to be contextualized within intellectual and social history (49).
Chapter Three proceeds to ask: what is it that determines how each of these ideational frames comes to dominate? Lacey draws a conceptual map of the prevailing ‘interests’ underlying societal power structures, asserting that the criminal law is most often shaped by elites, whilst disproportionately enforced against non-elites. The main interests identified are economic, professional, cultural and symbolic, as well as the pivotal position occupied by the modern media. All are crucial to sustaining that particular dynamic vital for the subsistence of the criminal law – political power. Demonstrating how criminal responsibility is invariably shaped by these dominant power structures, Lacey highlights examples such as the nineteenth-century rise and legitimation of corporate power and, more recently, the politicisation of law and the phenomenon of ‘overcriminalization’ in the late twentieth century.
However, as Lacey asserts in Chapter Four, power-based interests cannot exist in a social vacuum. They must rely upon relevant ‘institutions’ for their legitimation and coordination. From the legislature to the police, the judiciary to the prison and probation services, each is implicated in an overarching professional and institutional framework fundamental to the evolution of our current conception of criminal responsibility. Describing a historical trajectory towards a modern epoch of the professionalisation and systematisation of criminal justice procedures, Lacey argues that ‘in both explanatory and normative cases, the history of the institution under scrutiny makes a real difference to the intellectual task of analysis or prescription’ (132).
Lacey’s analysis builds to Chapter Five, where she delineates a historical timeline traversing four identifiable configurations of responsibility-attribution practices from the eighteenth century to the present. Whilst a comprehensive account, the most innovative point is her hypothesis on the contemporary emergence of a hybridised character-risk responsibility-attribution theory. As evidence, Lacey cites the recent resurgence of character-assessment-based ascriptions of criminal liability, such as the much-maligned ASBO as well as the criminal law’s increasing propensity to deal with certain groups, including suspected terrorists, on certain risk-based assumptions.
Lacey recognises that her account will not convince everyone. In particular, she actively pre-empts potential criticism that her move away from moral philosophy might limit the normativity of her analysis. Acknowledging that her account is primarily interpretive and evaluative, Lacey asserts that it was never her primary aim to provide any truly normative answers. Instead she persuasively argues in favour of an interpretive and reflexive methodology, moving between established criminal responsibility theories and social phenomena. In so doing, Lacey provides a compelling proposal for an assimilation of this critical approach into current scholarly understandings and normative visions of criminal responsibility theory.
Without doubt, Lacey’s book is prerequisite reading for those concerned with the most advanced research on modern criminal responsibility and enlightening reading for those interested in criminal law and legal scholarship more generally. Lacey’s analysis may not represent an endpoint in the study of criminal responsibility, but it is an insightful and potentially influential divergence from more traditional scholarship: an important search for a theory of criminal responsibility, down what might still be regarded as something of a jurisprudential rabbit-hole.
Caroline Henaghan is a Graduate Teaching & Research Assistant and Doctoral Candidate in the School of Law at The University of Manchester. With a professional background in law, her works focuses on issues of gender in the criminal law. Currently engaged in research on gender-specific criminal defences, Caroline is an enthusiastic advocate of women’s rights and tweets @ThePMDDDiary. Read more by Caroline Henaghan.
Note: This review gives the views of the author, and not the position of the LSE Review of Books blog, or of the London School of Economics.