Introduction
Chapter 1 establishes that the state (through its criminal law) ought to be alive to its role in advancing social justice at the site of culpability evaluation. The aim of Chapter 2, then, is to elucidate the substance of the duty owed by the state to the person who offends at the point of blame, and to outline a conceptual tool to aid in fulfilling this duty, termed the Real Person Approach (RPA). At present, condemnation takes precedence over the protective role of the state, which leads to both moral and social injustices at this site, which are explored more fully across Chapters 3 and 4. The RPA responds by setting out a guiding framework which helps to identify and explain these injustices, and aids with the task of establishing how to hold people to account for wrongdoing in a way that advances social justice, or, at least, does not impede or undermine it. The framework consists of three core features: vulnerable agency, recognitive justice, and feasibility. It is a modest device in the sense that it can sit alongside other social context arguments that adhere to an understanding of personhood as relational, and it can also align with justice responses that espouse social cohesion as their overarching objective. For the purposes of this book, a core aim of the RPA, at a paradigmatic level, is to inform the bounded causal theory of excuse, explained in Chapter 8, as a means of legitimising the proposal for a Universal Partial Defence (UPD).
As a prelude to the explanation of the RPA, the chapter begins with an overview of the dominant construct of personhood at culpability evaluation before highlighting key trends in critical scholarship that call for change towards a more contextual understanding. In so doing, it aims to show how the proposal in this book is underpinned by an established and growing scholarship that recognises the problem with the dominant understanding of rational agency in criminal responsibility attribution, and to establish the fact that change at this site is, indeed, possible (if nothing else, for now). The chapter then summarises the case for the RPA, which is set out in more detail across Chapters 3 and 4, before concluding with an explanation of its key features.
Introducing the Dominant Understanding of Personhood
Chapter 1 opened up the conversation about the place of the law’s person, a construct which is discussed in various guises throughout the book. However, it may be helpful to take pause at this point to provide a brief account, and to note that the focus here is on the doctrinal projection of the rational agent of the criminal law (as distinct from an empirical analysis of how the law in practice interacts with the persons subject to it, for instance).Footnote 1
Though discourses tend to assume a dominant or ‘orthodox’ understanding of personhood or agency in law, it is worth pointing out that the legal person wears many different faces, depending on the objective it is deemed to serve.Footnote 2 Space does not allow for a full account of the broader concept here, but to emphasise that the construct is a fundamental feature of Western liberal democracies,Footnote 3 and foundational to human rights law at an international level, whereby all human beings are designated legal persons in our present time and place, having been endowed with the accompanying rights and duties.Footnote 4 The version of personhood in criminal law is not singular, either, and can shift according to its significance at a particular stage or ‘moment’ of the criminal justice process.Footnote 5 For example, Chapter 7 shows how varying understandings emerge at two distinct phases of the criminal process, inculpation and exculpation, which have divergent functions relating to criminalisation and attributing blame, respectively. Moreover, it is worth noting that our interpretation of what legal personhood entails can be flavoured by what others claim regarding its conception, as distinct from how it might present in the law itself.Footnote 6 For clarity, then, I use the term ‘dominant’ here to denote a version of personhood that tends to underpin the doctrine and principles of criminal responsibility at the exculpation stage, in particular.
As mentioned previously, Chapter 7 discusses in more detail the account of personhood presented at this point. For now, however, it is sufficient to emphasise the greater premise on which responsibility ascription is based. Indeed, it is deemed legitimate to hold someone responsible for a crime (and so potentially subject to punishment) because it is an act of respect for their personhood,Footnote 7 which aligns with the principles of liberal democracy. For, in blaming the responsible subject, the criminal law is recognising the moral authority of the person, by both demanding and permitting their response as a moral agent.Footnote 8 This depiction of personhood is what Matt Matravers describes as a ‘thick, causally sensitive account’, which acts as a ‘pressure relief valve’ for the more restrictive or ‘thin’ account of personhood at the criminalisation phase which is concerned to a greater extent with the prohibition of wrongful harm.Footnote 9 The pressure that is relieved at this stage relates to the intuitive sense that it does not always seem fair to cast the individual as the causal agent. Matravers writes: ‘This thick account acts as a “pressure relief valve”. Such valves control the pressure in a system by allowing a “path of least resistance” for whatever is causing the strain (in this case causal threats to the fairness of punishing individual offenders each with a history).’Footnote 10 Generally, causal accounts are not entertained at the excuse stage; however, in Part III, we will explore how aspects of it can filter through in practice, with a view to supporting a bounded causal approach as a rationale for the UPD.
As such, the dominant understanding of personhood at this point assumes the possibility of responsible agency: it may be accepted that though circumstances can bear on individual action, they do not fully override personal choice. In other words, there is deemed to be sufficient autonomy and rational capacity in most of us to hold us out as potential subjects of the criminal law.Footnote 11 The choice to commit the offence (or not availing of the opportunity to do otherwise) is contemporaneously the gateway to sanctioned state violence, and the veneration of the moral authority of the individual – in respecting the person’s capacity to choose and control their actions, the law demands that they are held to account for and bear the consequences of that choice. Thus, to be a responsible agent is to be a rational agent, and rational agency consists of two central capacities: the capacity to respond to reasons (rational capacity) and the capacity to choose to react to such reasons or, in another sense, having a fair opportunity to do otherwise. Within this characterisation, then, we can identify two key features of personhood which are worth clarifying here as particular concerns of the RPA: rational capacity and autonomy.
The capacity to act rationally is largely a normative inquiry at this point and is captured by the reasons-responsiveness account which holds that a person is responsible to the extent that they have the capacity to respond to their moral reasons for acting.Footnote 12 Coppola explains it in the context of the criminal law: ‘[T]he meaning of good reasons for actions embraces the prescriptive and proscriptive contents of criminal law rules and standards. Such contents provide the good reasons that a person is supposed to internalise and be motivated by when determining his or her behaviour.’Footnote 13 As Coppola notes, in dominant philosophical accounts of the criminal law, rationality tends to equate with reason, and is depicted as a cognitive or intellectual faculty of the mind, assuming the following mental processes: ‘knowledge, including abstract thinking, judgement, reasoning, observation, and understanding’.Footnote 14 And it is this language that has filtered down to excuse doctrine, as exemplified most markedly by the M’Naghten Rules, which establish an insanity defence if, at the time of committing the act, the defendant was ‘labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong’.Footnote 15 This emphasis on understanding and practical reasoning puts cognitive functioning as the key source of the law’s understanding of rational capacity,Footnote 16 and as the foundation of excusing conditions.Footnote 17 Though M’Naghten still reigns in England and Wales, other jurisdictions, like Ireland, have added a volitional component to this formula, broadening the remit of the excusing condition.Footnote 18 (Note, however, how scholars like Morse would interpret volitional capacity as coming within a normative understanding of rational capacity, as discussed further in Chapter 8.) What is intriguing about partial excuse, in particular, is that it is a discrete point where, in limited circumstances, doctrine tends to have a little more flex; for instance, in recognising the role of emotional capacity, too, in impairing mental functioning, through the idea of ‘heat of passion’ or ‘loss of self-control’ under the provocation/loss-of-control test,Footnote 19 and in the understanding of the nature of an excusing condition for the purposes of diminished responsibility.Footnote 20 More broadly, the criminal law sets a low threshold for rational capacity because it is closely aligned with a liberal understanding of autonomy. As Morse explains: ‘[T]he general capacity for rationality is the precondition for liberty and autonomy. A lack of this capacity explains virtually all cases of criminal law excuses.’Footnote 21
Chapter 7 explores the significance of autonomy and voluntarism for the purposes of excuses in further detail. However, for now, it is sufficient to underline that, as discussed in Chapter 1, the criminal law’s notion of autonomy is strongly attuned to the liberal understanding of personhood. In this sense, it functions to regulate and protect the rights and freedoms of people, in addition to providing substantive content to law.Footnote 22 For the purposes of criminal responsibility, that content is both factual and normative.Footnote 23 It is factual in the sense that the person is understood as having the capacity for autonomous action or self-government such that they can be described as a cause in themselves.Footnote 24 The normative content of autonomy relates to how the state ought to regard the individual, in terms of respecting them as beings capable of shaping their own lives.Footnote 25 As such, it tells us that we are ends in ourselves and not simply means to an end; our choices matter.Footnote 26 As Loughnan notes, this ‘orthodox view’ is ‘integral to the dominant account of criminal responsibility as the normative heart of the criminal law, because it connects the criminal law to moral norms about responsibility and permits the moral condemnation of the individual convicted of crime’.Footnote 27 But norms about responsibility are contingent and increasingly contested in scholarship, which brings into question the legitimacy of the conceptual status quo at the site of blame. The RPA stems from close engagement with these discourses, as outlined in the next section.
The Rise of the Person in Relation
There is an overall sense from key lines of critical literature that the law is inherently unfair for failing to map its construct of the subject more closely to contemporary and real-world understandings of personhood. Reflecting the aforementioned discussion, scholarship tends to critique the law’s dominant approach via two key avenues; one pursues ideas of individual autonomy and agency, and the other the nature and hegemony of rational capacity. Discourses are nuanced, diverse, and far-reaching, and the purpose of this section is to draw out some of the leading voices in order to capture the overall quest for context at play in this area, and as a backdrop to the more in-depth analysis of rational agency that takes place across Chapters 3 and 4. This account highlights the various bases of core positions, and the prevalence and force of the criticism levelled at the current model of the subject. It situates the RPA largely in alignment with these discourses with a view to buttressing complementary calls for change.
Underpinning more pointed psychological and philosophical critiques of personhood in criminal law discourses is the critical, socio-historical work of Farmer and Lacey who, respectively, have made a significant contribution to tracing and explaining the contingency, modality, and coordination of criminal responsibility across time and space. Farmer’s contribution with regard to legal subjectivity helps us to appreciate how the ‘prospective’ nature of criminal responsibility in terms of the obligation on a person to conform to the law, links it to the modern, liberal understanding of personhood, whereby the individual takes ownership of their own capacities.Footnote 28 This connection is reinforced by Lacey’s work which shows how modern philosophical analyses of responsibility have emerged from ideas of agency that trace the development of societies towards the liberal democratic state and the institutions and structures that embody it.Footnote 29 Lacey has long called for recognition in law and scholarship of the ‘socialised’ nature of the criminal law’s subject,Footnote 30 which demands engagement with history and the social sciences in order to better understand the greater criminal law project. These accounts expose the vulnerability of the law’s subject to social, historical, political, and cultural influences both within and beyond criminal responsibility,Footnote 31 and its inevitable alliance with contemporary understandings of autonomy and agency in a political context.
Autonomy and Agency
While ideas and practices of responsibility may change over time, doctrinal reform tends to lag behind, resulting in sustained criticism. Notably, Alan Norrie’s work undermines dominant notions of individual autonomy, criticising the orthodox model of the subject as separating the individual from their relational context, which he deems a false separation.Footnote 32 In response, Norrie relies on the social psychological experience of personhood, as promulgated by Rom Harré, in order to draw out the ambiguity and relationality of selfhood, reflecting the human struggle to construct an identity of self in the face of our inherent vulnerability to others. His writing captures a sense of push and pull, whereby we recognise that we are reliant on others in order to form our vision of self, while contemporaneously denying this relationality so that we can comprehend ourselves as an independent whole. Reflecting this complexity, Norrie writes:
[T]he self is always in relation, which amounts to saying that selfhood is a relation, at the same time that it understands itself as autonomous. / Mastering a language of selfhood, we become ourselves, although not without a sense of ambiguity. We feel in control but, every so often, realise we are not.Footnote 33
Norrie’s analysis helps us to appreciate further why we might buy into the orthodox approach of the separate individual, while showing us that this representation obscures the reality of our collective interdependence, ultimately misrepresenting our lived experience.
Others, too, have called for a more relational approach to personhood on the grounds of achieving an understanding of the self that accords with findings from contemporary social and mind sciences. For instance, Herring examines the notion of selfhood in relation to law, arguing that the law’s objective ought to focus on enhancing caring relationships over individual rights, atop an understanding of the self as relational. His view of the self draws on feminist psychology, philosophy, and sociology,Footnote 34 and amounts to ‘an understanding of the self as emerging and interacting through our relationships’.Footnote 35 In so doing, he argues for a construct of the self in law that recognises that ‘we are all vulnerable’ in our human nature.Footnote 36 Similarly, Reeves frames the need for a more holistic understanding of personhood in terms of agency. He argues for a heteronomous, as distinct from autonomous, form of agency to underpin the ‘rights-bearing agent’ of the criminal law, more closely aligned with current understandings of the psyche: ‘The task for the philosophy of criminal law is to engage in concrete utopian reflections on the possibility of a different responsibility practice in a changed form of ethical life that would be more adequate to the real psychology of persons.’Footnote 37
Another convincing line of literature that endorses a relational understanding of personhood is found in critiques on the criminal law’s gendered subject. Notably, Naffine employs the tools of critical feminist thinking to interrogate and undermine conceptual orthodoxies in criminal law.Footnote 38 Loughnan brings this particular frame to criminal responsibility, arguing that it functions to organise ‘key sets of relations – between self, others and the state – as relations of responsibility’.Footnote 39 These works are nested within a wider critical feminist literature that is nearing consensus on the relational nature of human personhood, in contrast to the orthodox subject of the law, though means of expression differ.Footnote 40 Such approaches are further echoed in care ethics scholarship, which underscores close personal relationships and related responsibility over those of the individual liberal agent conception.Footnote 41
(Rational) Capacity
Arguments that seek to provide a more authentic depiction of rational (and other) capacities (as well as how they can be undermined), as a basis of personhood in law also draw on studies in human psychology. Criminal law theory is increasingly asking questions about the place of emotion in the cognitive process, and consequently in evaluations of culpability. For example, one thread argues convincingly that emotions have a more prominent role to play in evaluating culpability as a key part of the capacity to reason.Footnote 42 This perspective is particularly evident in relation to defences,Footnote 43 where emotion theory has been drawn on to test the reasonableness of reactions to stress, for instance, in relation to duress,Footnote 44 and more recently to support a theory of ‘reactive defences’ relating to the role of fear across self-defence, duress, and necessity.Footnote 45 Emotion has also been used to justify proposals for the introduction of new excuses and partial excuses,Footnote 46 as discussed more extensively in Part III.
Lacey and Pickard have gone further in a practical sense in terms of seeking to apply interdisciplinary insights to practices of responsibility. They develop a ‘clinical model’ of ‘responsibility without blame’, which draws on psychopathological understandings of the human psyche in order to inspire a therapeutic approach to blame and punishment, in a way that reconciles itself with (rather than overrides) the justice model.Footnote 47 By drawing on psychological and psychotherapeutic approaches to the clinical treatment of patients with disorders of agency, for example, personality disorders, impulse-control disorders, and addictions, Lacey and Pickard propose a patient-centred account of responsibility attribution involving ‘non-affective’ blame, whereby ‘the clinical model judges patients responsible and indeed accountable for wrongful or harmful conduct to the extent that they possess the relevant cognitive and volitional capacities in relation to it. But in contrast [to the justice paradigm], it resists any corresponding tendency towards affective blame’.Footnote 48
Still other strands draw on social psychology to question the construct of agency (as reliant on capacity) underpinning the law from a situationist perspective.Footnote 49 Hanson and others have done considerable work in challenging the dominance of the ‘norm of reasoning’Footnote 50 in legal discourses charging it with the mantle of ‘dubious ideological framework’Footnote 51 and problematising it in a social psychological frame as a ‘dispositionist person schema’.Footnote 52 The challenge posed by situationism, in short, is that situational contexts and variations bear heavily on substantive moral behaviours and undermine traditional notions of moral responsibility. They tend to reveal agency as highly contingent on circumstance, emphasising the innate vulnerability of the person to their situation. From the psychological camp, there are clear questions about the ability of the law to deliver just assessments of culpability in light of the lessons from situationist literature.Footnote 53 Though this challenge tends to be diluted by some scholars (for instance, by separating the notions of moral and criminal responsibility),Footnote 54 others identify that the radical nature of the challenge rests fundamentally in situationism’s findings on how our reactions sustain our attributions of responsibility, rather than getting caught up in the mechanisms of individual psychology.Footnote 55 For instance, Kaye argues that situationism has had limited impact because it is held back by imbedded individualistic accounts of the psychology of the person rather than focusing on the person’s relation to their wider social context, or, as Kaye puts it: ‘[I]ndividualist baggage bogs the situationist challenge down.’Footnote 56 He maintains that ‘[i]f we put aside the presumption that the individual can stand above and apart from his circumstances, we can do more justice to situationism’s insight into the power of the situation. Now we can fully appreciate the extent to which people are vulnerable to, and part of, their situations’.Footnote 57
Taken together, these discourses suggest that the legitimacy of the criminal law is at risk because core principles of responsibility fail to recognise a version of personhood that rings true to modern understandings of human psychology. The conclusions from the chapters to follow accord with this view, and inform the proposal for a bounded causal theory of excuse in Chapter 7, to legitimise the call for a UPD. To guide this enterprise at a paradigmatic level, the RPA responds to this deficit by drawing on political theory from a real-world perspective with a view to supplementing the understanding of the law’s subject to reflect a more fulsome and authentic account of the relational nature of personhood. It aligns with these bodies of work in its quest for the recognition of context, and it lends support by stressing that the rift between the present ideal and the reality of personhood at the site of culpability evaluation is a matter that impedes social justice.
Before making a case for the RPA, it is worth clarifying that the dominant approach is not a mandatory phenomenon. This claim is supported by the fact that the concept of criminal responsibility is not immutable, rather it is contingent in time and space. As Loughnan remarks:
Crucially, in critical studies of criminal responsibility, space and time are recognized as variables, which means that responsibility principles and practices must be assessed within the particular traditions of criminal justice systems as they exist at particular junctures. And this opens the way for recognition of variation across different systems, and change in principles and practices of criminal responsibility over time.Footnote 58
And, indeed, although such principles and practices must be understood within the existing traditions of criminal justice, a normative critique of them can draw (as critical theorists outlined earlier do draw) on existing ideas beyond criminal law, be it from political philosophy, psychology, sociology, and so on.Footnote 59
Even from a moral philosophical standpoint we can argue that the capacity to reason alone is not inevitable as the target of the law’s respect for persons.Footnote 60 For instance, Darwall’s classic respect thesis relies on relationality (that there is a respecter and a respected),Footnote 61 and suggests that recognition respect is not bound by reason as its object.Footnote 62 He describes recognition respect as consisting in ‘giving appropriate consideration or recognition to some feature of its object in deliberating about what to do’.Footnote 63 All persons, for Darwall, are entitled to this form of respect when decisions are made that impact them which bears out in having others ‘take seriously and weigh appropriately the fact that they are persons’.Footnote 64 In terms of assessing appropriateness, then, the crux of recognition respect is ‘to have some conception of what sort of consideration the fact of being a person requires’,Footnote 65 or, the ‘intrinsic moral worth’Footnote 66 of persons.Footnote 67 It is acknowledged that this understanding of respect is a heavily contested and arguably contingent construct.Footnote 68 However, the point for present purposes is that the aforementioned reading allows the idea of respecting personhood to be imbued with other meanings stemming from the time and place of the society it serves, and so, at least on a theoretical level, provides for the possibility of evolution for the dominant approach.
From the discussion so far, we might conclude that within the field of criminal law theory (and drawing on extensive literature from related fields), there is a strong call to develop the concept of personhood within the context of criminal responsibility. We might also conclude that change is possible, at least theoretically. Building on extant literature outlined earlier, it is clear that the demand for change must involve an account of the law’s agent that more clearly reflects what most have come to know and accept as ‘real persons’. In developing the RPA to help guide such change, the next section accepts this viewpoint but draws more heavily on the state’s duty in relation to the person in order to establish an additional justification for doctrinal reform, and to inform the construct of personhood at the point of culpability evaluation.
The Case for the Real Person Approach
The RPA seeks to expose and address the moral and social justice deficit inherent in the dominant approach to criminal responsibility ascription in order to legitimise a UPD. The case for this approach is developed across Chapters 3 and 4, respectively, but is useful to summarise here.
Chapter 3 concerns the proportionality problem. It draws on established findings in mind sciences to target the backward-looking function of culpability evaluation. At present, this doctrinal exercise is almost exclusively reliant on a rational agency paradigm, the focus on which, it is argued, results in moral injustice through overblame, owing to a bounded view of personhood exemplified by a restricted desert calculus and a lack of recognition of the scalarity of blameworthiness. The RPA responds to this injustice by fore-fronting the relevance of inherent and situational vulnerability (discussed later) to assessments of past behaviour and to the state of being deemed blameworthy. In so doing, a version of the psyche more closely associated with real (as opposed to ideal) people underpins an argument for the expansion of the grounds for an excusing condition, in addition to the recognition of degrees of blameworthiness at culpability evaluation, both of which are actualised through the UPD.
Chapter 4 develops the second argument for the advancement of the RPA, through outlining what is characterised as a parsimony problem. It contends that the criminal law is failing in its public duty to the person who offends through its unique conceptual contribution to wider punitive responses, undermining penal parsimony and leading to misrecognition. For, the weight afforded to the rational agency paradigm at culpability evaluation (through retributivism), to the exclusion of other relevant capacities and factors, stymies the forward-looking function of blame, too, in terms of inducing compliance with legal norms and building social cohesion. In response, the RPA demands space for recognitive justice considerations which encourage compliance by supporting capabilities and developing a more meaningful form of autonomy through a deeper recognition of circumstance through the UPD. Moreover, it reinvigorates the principle of parsimony at the culpability evaluation stage in order to dampen the punitive voice of the criminal law, thereby mitigating pathogenic vulnerabilities, as outlined later in this chapter.
It may be that the moral case in Chapter 3 is sufficient to justify the UPD. However, the overall argument in this book draws heavily on the social justice angle (in terms of vulnerability theory and recognitive justice) in order to provide the basis of a view of personhood that not only reflects more closely the human psyche, but one that already has political clout. As Fineman puts it:
Recognized as a universal description of the human condition, vulnerability clearly has significant implications for assessing the ways in which law and policy currently arrange the organization and operation of society’s essential institutions, as well as relevance in assessing the just-ness and possibilities for reform of those arrangements.Footnote 69
Key Features of the Real Person Approach at Culpability Evaluation
The RPA has three key features which respond to the problems outlined in the previous section, and which are brought to bear at the site of culpability evaluation in Chapters 3–8. First, it is built upon an understanding of personhood as vulnerable; second, it promotes recognitive justice in state responses to persons who offend; and, third, it is feasible in the sense that it is compatible with liberalism and so works with the dominant political principle of our time and place in order to advance social justice incrementally. It is also feasible in the sense that it aligns with, and champions, the core criminal law principles of proportionality and parsimony. This section considers each feature in turn.
Recognising Personhood as Vulnerable
Vulnerability
At the outset, it is useful to clarify the nature and extent of the engagement with vulnerability literature for the purposes of the RPA, given the ubiquitous presence of the concept, and its varying uses and measures across a range of areas in recent decades – from healthcareFootnote 70 to economicsFootnote 71 to educationFootnote 72 to disaster research,Footnote 73 to name but a few. From a socio-cultural perspective, the idea of being vulnerable has become more and more prominent in the everyday vernacular,Footnote 74 as well as establishing a strong base in academia,Footnote 75 and government policy-making more broadly.Footnote 76 In these contexts, it is often used as a form of designation or status, in order to categorise groups of people who are deemed to be at a particular disadvantage by virtue of characteristics like age, health, or gender. The law typically gets involved in such instances in order to uphold human rights or to provide a particular form of remedy,Footnote 77 for instance. From the criminal law perspective, the idea is most closely (and controversially) associated with the construct of victimhood.Footnote 78 Other spheres in which ideas of vulnerability emerge include discourses on how it might be deployed as a means of social control, and as a ‘problematic cultural trope’.Footnote 79 All this suggests that the idea of vulnerability is at once commonly understood and conceptually opaque, given its expansive scope and varied applications and meanings.
Of course, along with the difficulty in defining a concept can come a certain flexibility of application in terms of its potential adaptability to the particular. Accordingly, to operationalise vulnerability we might apply it to discrete contexts with clear objectives. As such, the RPA promotes a particular understanding of vulnerability as it applies to personhood at the point at which individuals are held responsible for crime, and with a view to advancing social justice at this site. In so doing, the approach relies on a line of scholarship that starts from an understanding of vulnerability as universal.Footnote 80 In a legal context, this follows the work of Herring, who draws on Fineman’s version of vulnerability to put forward an argument for a ‘universal and beneficial theory of vulnerability’.Footnote 81 For Herring, this version rejects the designation or status approach as outlined earlier in favour of a construct of vulnerability that is ‘in the nature of all people’.Footnote 82 Much less has been written about the application of vulnerability to personhood in relation to criminal responsibility, specifically, though recent contributions indicate this is changing.Footnote 83
Personhood
The concept of personhood is central to holding the boundaries of vulnerability. Building on the earlier discussion of this concept, then, it is helpful to clarify briefly what personhood means for the RPA, in particular, at this juncture. Underpinning the strict legal interpretation of personhood is a rich theoretical landscape relating to the extent to which the law’s subject ought to accord with an account of real personhood. To this end, Naffine articulates the tension between the two key accounts of personhood, realism and legalism, whereby legalists argue that ‘law does not and should not operate with a natural conception of the person’, whereas realists argue that it ought.Footnote 84 For the avoidance of doubt, the RPA is bounded by a realist understanding of personhood because the defences to which it applies are concerned chiefly with real people who are the subject of blame at the hands of the state. Moreover, the function of personhood at the site of culpability evaluation, in interpreting the explanations of defendants, reflects the demand for a particularised understanding of the concept.Footnote 85
Of course, this focus on natural persons prompts greater, foundational questions, like what does it mean to be a human being? And, relatedly, as Fineman indicates, how ought our answer to this question influence the way we structure society?Footnote 86 Taken together, these two questions demand of us to determine, in Fineman’s words, ‘what is “just” or necessary (or even possible) to fully consider how our understanding of the essential human condition should inform both theory and, ultimately, social policy and law’.Footnote 87 In answering what it is to be human, vulnerability theory begins with the physical reality of having a body. This corporeal aspect of vulnerability is captured in the discussion of inherent vulnerability later in this chapter, but it is worth mentioning here, in justifying the scope of the discussion to follow, that some versions of personhood go beyond a question of embodiment alone, and can transcend into a metaphysical discourse about the nature of human dignity,Footnote 88 or the ‘inner transcendental kernel’, as Rosen puts it.Footnote 89 While there is certainly a place for this discussion, and it is touched on from time to time in this book, it can distract from the more pressing need to develop doctrine that inheres social justice for the real persons subject to it, at a pivotal point in their relationship with the state. For this reason, the RPA takes a lighter ontological touch in its understanding of embodiment for the purposes of personhood, and frames the latter according to the nature of the transaction taking place between core stakeholders at the point of culpability evaluation. In so doing, it also includes consideration of the overall objective of the state in blaming people. In this way, it is hoped to avoid falling into an essentialist discussion of humanhood, and rather constrain the search for the ‘essence’ or significance of personhood by focusing on the function and the duty of the criminal law at this site: to hold wrongdoers to account and to protect those under its care.
Accordingly, this section does not attempt a comprehensive review of the literature on vulnerability theory;Footnote 90 rather, what follows is an account of vulnerable agency that draws on prominent voices in the field, and that is bounded by the task at hand (that is, the work that vulnerable agency needs to do at the site of culpability evaluation in order to legitimise the extended scope of the partial excuse doctrine underpinning the UPD).
Vulnerable Agency for the Purposes of the RPA
The version of vulnerability underpinning the RPA is based on an understanding of the concept as both a biological and social condition of our shared humanity. This account works for the RPA because it presents a view of personhood that is dynamic and contingent on real-life circumstances, yet is sufficiently established to legitimate an explanation of respect for persons as both rational and vulnerable agents within the criminal law. Further, the idea of vulnerable agency can be understood in a way that aligns with the basic aims of liberalism in terms of safeguarding autonomy, while contemporaneously adhering to the principles of a liberal conception of social justice which involves protecting the vulnerable,Footnote 91 as discussed later.
Vulnerability theory, on this understanding, is built upon the idea of mutual recognition. The process of mutual recognition is based on the Hegelian notion of ‘Bewegung’ or movement, and is a complex and multidimensional concept,Footnote 92 that has inspired highly influential and wide-ranging works.Footnote 93 The RPA draws largely from the scholarship of Fineman and Mackenzie, but most of the leading works share a porous construction of personhood, that amounts to something deeper than rational agency underpinned by cognitive capacity alone. Rather, they tend to acknowledge that the experience of being human is social first, before it can be considered reasonable.Footnote 94 In other words, our dominant, basic need for social connection derives from a biological survival instinct that tends to trump other priorities and capacities, like rational thought.Footnote 95 As such, the impact of recognition by others for the person relates not only to their self-perception but also to how they behave and act in the world.Footnote 96 Conversely, the absence or withdrawal of such recognition has an experiential impact on the person too, in the form of misrecognition or non-recognition. As Sola explains, ‘when we are despised or we are not recognized as persons, the realm of possible worlds contracts and we are left in a kind of metaphysical and practical isolation’.Footnote 97 Such misrecognition can be characterised as a form of social injustice,Footnote 98 as explored further in Chapter 4.
One of the more influential voices on vulnerability in the legal sphere, Fineman also sees autonomy as relational and acknowledges that it is built upon ‘an underlying provision of substantial assistance, subsidy and support from society and its institutions, which give individuals the resources they need to create options and to make choices’.Footnote 99 Mackenzie develops this idea further as a means of showing the compatibility between vulnerability and autonomy, and to support the contention that ‘duties of protection to mitigate vulnerability must be informed by the overall background aim of fostering autonomy whenever possible’.Footnote 100
Attributing blameworthiness can be characterised as a normative articulation of the principles regulating the way subjects recognise one another mutually. Accordingly, my aim here is to focus on the autonomy-related vulnerabilities specific to the person undergoing culpability evaluation. To do so, it is useful to draw on Mackenzie’s taxonomy of vulnerability.Footnote 101 I agree with Mackenzie that such a taxonomy, which relies on different sites and forms of vulnerability, enables a more in-depth understanding of the concept and makes it easier to operationalise. In this way, vulnerability can be both ‘an ontological condition of our embodied humanity’ and ‘context specific and particular’,Footnote 102 which, for present purposes, facilitates its discrete deployment at the site of culpability evaluation with a view to advancing social justice.
Mackenzie’s account reflects Fineman’s notion of ‘universal human vulnerability’,Footnote 103 in the sense that it acknowledges both the universality of human need and the particular. However, Mackenzie’s argument tends to focus more on the role of socio-structural factors in generating and maintaining vulnerability, in addition to corporeality, and is stronger for providing a taxonomy of vulnerabilities to better capture the nature of, and therefore the appropriate response to, each type. We are all physically, psychologically, and socially vulnerable. Yet the experience of vulnerability is also particular because each of us experiences being in a unique body, mind, and social context.
Types of Vulnerability at Culpability Evaluation: Deploying Mackenzie’s Taxonomy
Universal/Inherent Vulnerability
Mackenzie describes a form of inherent vulnerability that she deems ‘intrinsic to the human condition’.Footnote 104 This category stems from our unavoidable and embodied needs, and dependencies upon each other. Such vulnerabilities include constant as well as fluctuating states that are contingent upon factors such as health conditions, age, and gender. Inherent vulnerability cannot be eliminated. Rather, it is the role of political institutions to mitigate the effects of such needs through adequate welfare provision, for instance.
The significance of this category of vulnerability is that it consists in our being dependent on others, both for active support and interaction, as well as for non-interference with regards to factors like well-being. Accordingly, our agency is formed through a dynamic and normative web of mutual recognition, as mentioned earlier, and developed in detail in the work of Honneth.Footnote 105 As Honneth puts it, ‘the integrity of human subjects, vulnerable as they are to injury through insult and disrespect, depends on their receiving approval and respect from others’.Footnote 106 The subtlety of this dynamic is captured well by Petherbridge, who notes how mutual recognition ‘occurs “behind the backs” of social actors, so to speak, whereby a primary affective form of recognition forms the underlying ontological fabric of social life’.Footnote 107 As such, inherent vulnerability captures the idea that humans are not merely isolated, abstract agents. Rather, our autonomy is conditioned by our dependency on one another, and the state has a role to play in acknowledging this reality. Indeed, closer to a criminal law context, Ramsay has reflected on how the idea of the ordinary citizen as vulnerable has become a staple of influential political theory and political rhetoric more broadly.Footnote 108
As real persons, then, it is not particularly controversial to assert that those who are subject to state blame are vulnerable in much the same way as those who are not.
Situational
The concept of situational vulnerability is used to describe how certain groups of people are subject to particular social challenges, with a view to highlighting related instances or possibilities of harm.Footnote 109 This category is connected to inherent vulnerability in the sense that, as Mackenzie explains, it focuses on ‘aspects of a person’s interpersonal, social, political, economic, or environmental situation that may compound her inherent vulnerability and compromise her capabilities to participate in schemes of cooperative production and potentially her status as an equal citizen’.Footnote 110 Consequently, in light of the discussion in the first half of this chapter, we might say that such aspects can compromise an individual’s autonomy and rational agency, and so Mackenzie’s account can therefore support a richer understanding of what the features of personhood involve and how they might be undermined in that context. Unlike inherent vulnerability, however, situational vulnerability is contextual in nature and can be short-term or inconstant throughout someone’s life.Footnote 111
Situational vulnerability works in two ways when applied to culpability evaluation. First, in determining blameworthiness, it can arise as relevant to a potential excuse or partial excuse to criminal behaviour, and is reflected in previous attempts to extend the scope of excuse theory to include external factors such as deprivation and abuse. Recognising situational vulnerability here demands a closer engagement with subjective experiences and an evaluation of how they may bear on assessments of culpability. Chapter 3 explains how this could involve expanding the basis of just desert on the grounds that autonomy is impeded by circumstance. Sola makes the connection between vulnerabilities (like addiction, deprivation, and so on) and criminal blameworthiness, by framing poverty as an impediment to agency. Though he seems to justify a poverty excuse on the basis of the principle of ‘less freedom-less responsibility’, and notes that further work is needed for recognition to be applied here.Footnote 112 Using the language of free will gets to the heart of why such excuses as poverty defences tend not to make it past the page, though Chapter 7 discusses this issue in more detail and suggests how it may be overcome. For now, it is enough to note that culpability evaluation (through the principles of excuse) is a key space where doctrine can recognise situational vulnerabilities.
Second, situational vulnerability requires attention to be paid to the ways in which the act of state blame can itself cause or exacerbate such vulnerability. This type is captured by a subset of situational vulnerability, which Mackenzie terms ‘pathogenic’.Footnote 113 Pathogenic vulnerabilities relate to those that are particularly morally objectionable, such as those emerging from relations of unequal power, social domination, prejudice, and oppression.Footnote 114 The notion of pathogenic vulnerability is useful in the sense that it focuses on the role of interventions in causing or contributing to situational vulnerability, even where they may have been designed to relieve it, for example, in reinforcing autonomy. As Mackenzie states, ‘A key feature of pathogenic responses to vulnerability is that rather than enabling a person’s autonomy they compound this sense of powerlessness and loss of agency and render her susceptible to new or different harms.’Footnote 115
In the context of culpability evaluation, pathogenic vulnerability captures how even though holding someone to account for their actions might be framed as a means of respecting agency (through acknowledging and responding to someone’s choice to act wrongfully), the attitude underpinning doctrine can result in punitive responses which ultimately undermine agency and potentially risk harm through stigmatisation and marginalisation, bringing the individual another step further from membership of the moral community. It prompts the law to be cognisant of the fact that the moral and legal transaction taking place here subjects the individual to additional experiences, attitudes, and statuses that undermine autonomy. Pathogenic vulnerability is reflected in Sola’s idea of ‘emergent’ vulnerability which he uses to capture how punitive interventions themselves generate factors such as ‘stigmas, family break-ups, confinement among others’.Footnote 116
Reflecting on the potential role of vulnerability, it is important to note that the designation of vulnerability is a contested site, and is not a panacea to achieving social justice through recognition. How it is understood and applied matters. When groups of people are given this categorisation, they can be viewed as pathologically vulnerable due to a given characteristic – for instance, this can problematise them and reduce the role that situational vulnerabilities have played in these circumstances, feeding into responsibilisation narratives,Footnote 117 as explored further in Chapter 4. Singh demonstrates how this phenomenon works in the case of women in ‘failure to protect’ cases relating to a child in the context of domestic abuse. Designating women in this position as pathologically vulnerable evades the question of the wider circumstances that have contributed to their situation, in turn, making it their problem to solve by responsibilising them to manage the risk of the male partner.Footnote 118 Drawing on Fineman’s work, discussed previously, Singh advocates for a ‘vulnerable criminal subject’ construct to replace the autonomous legal subject on a universal scale. Singh notes: ‘[B]y engaging with the socio-historical context of crime the relationally vulnerable subject necessitates acknowledgement of patterns in both criminal behaviour but also more broadly in terms of structural inequalities.’Footnote 119 To offset this criticism of vulnerability, and as explained in Chapter 5, the UPD is universal in nature, meaning that it can apply across all offence categories, and so does not distinguish between categories of people who offend (for instance, between those who commit homicide and those who commit less serious offences). Moreover, the UPD is universal in the sense that it extends considerably the conditions and circumstances that may ground a partial excuse, ensuring that groups of people are not distinguished by virtue of the nature of their potential basis for an excuse (for instance, by reason of their gender, the presence of a mental health condition, or by their socio-economic status).
Through a vulnerability lens, we can see how culpability evaluation takes on a more significant role in terms of representing a key relational interchange between person and state that bears on conditions of autonomy. Supporting the autonomy of real people, then, becomes integral to maintaining the legitimacy of the law at this point. The next section looks more closely at how the law ought to respond through the mobilisation of recognitive justice.
Promoting a Recognitive Justice Response
Theories of recognition more broadly function to explain social lives, relations, and power dynamics on the premise that our vulnerabilities form an inextricable part of our agency at a normative and political level.Footnote 120 For, failure to attend to all categories of vulnerability threaten our subjecthood which can emerge as an experience of powerlessness over our own lives, and which can risk paternalistic responses at an institutional level.Footnote 121 As Anderson and Honneth explain, ‘autonomy turns out to have as a condition of its possibility, a supportive recognitional infrastructure. Because agents are largely dependent on this recognitional infrastructure for their autonomy, they are subject to autonomy related vulnerabilities: harms to and neglect of these relations of recognition jeopardize individuals’ autonomy’ [emphasis in original].Footnote 122 To recognise, then, is to affirm the reality that our dependent human condition requires particular forms of social and political responses in order to protect and foster autonomy through addressing or at least ameliorating the harms that may arise from vulnerability.Footnote 123
Recognitive justice captures the duty on the state that emerges from the forms of vulnerability discussed earlier, and implies an obligation to respond to these vulnerabilities in a way that promotes democratic equality.Footnote 124 Inherent in this duty is the requirement to support the autonomy of individuals in a more meaningful way than liberal subjectivism alone can provide. As Mackenzie explains, a ‘just state’ is obliged ‘to foster an autonomy-supporting culture and to ensure that social institutions … provide access to the resources and opportunities and support the kinds of social relationships that promote autonomy’.Footnote 125 Part of this endeavour requires the development and maintenance of ‘interpersonal, social, and institutional scaffolding’ which must be alert to threats to autonomy such as ‘social domination, oppression, and disadvantage’.Footnote 126 For recognitive justice theorists, the realisation of such threats amounts to social injustice and therefore demands that the state develop ‘social, political, and legal institutions that foster citizen autonomy’.Footnote 127
The end game for recognitive justice is the ‘formation of individual autonomy via the integration of the subject into social norms, which later leads to the individual’s role as a legitimate social agent’.Footnote 128 However, the nature of the duty is not such that it must create results, for example, in terms of reducing reoffending. Rather, it must speak to inherent vulnerability/dignity such that recognition takes place notwithstanding whether someone actually changes or not. In this sense, Mackenzie characterises autonomy as a status which relies conceptually on intersubjective recognition and demands protection from state institutions.Footnote 129 Honneth and others have applied recognition theory to the legal domain specifically,Footnote 130 highlighting the role of recognition in relation to the rights and duties of the subject of the law. In doing so, Honneth emphasises the requirements of structures of mutual recognition in law as a manifestation of social life built upon a relational autonomy of personhood.Footnote 131 Here, the subject is no longer a universal abstract but is in communication with others in the real social life and working towards moral consensus, over an ideal moral truth.Footnote 132 This consensus emerges because the connection remains with the moral community. Sola summarises the task from an institutional perspective, as follows:
Only when the communicative subject comes into contact with that institutional and material reality – dependent of law, work, market, education, etc. – does freedom reach its final stage and become social freedom, defined as a relation of recognition linked to an institution in which the individual determines a will that appears socially hatched, and in which the other does not appear as an enemy (as in the seat of negative freedom) but as a condition for self-realization.Footnote 133
Applying recognition to the criminal law, as a part of the apparatus of the state, requires it to fulfil its duty towards the person with a view to supporting their autonomy, as understood in the present context. Of course, there is a limit to what the criminal law can do in terms of promoting the self-realisation of the person, but it is required at least to strive to recognise the subject as an autonomous agent, which involves acknowledging and seeking to offset inherent, situational, and pathogenic vulnerabilities. Doctrine can only go so far in terms of reinforcing autonomy,Footnote 134 but it must at least have as its objective a greater awareness of the significance of crime as a social phenomenon, and it must be more upfront about its institutional role in influencing autonomy-related outcomes for those who offend. As such, the criminal law has two distinguishable tasks at the site of culpability evaluation. First, it must recognise and make allowances for the ways in which those who appear in its courts have suffered impairments of their autonomy (impairments that flow from their vulnerabilities); and second, it must respond to them in ways that (might) enhance or rebuild their autonomy.
The UPD supports the promotion of autonomy through its universality of application across all offence categories which represents the fact that all subjects of the criminal law are inherently vulnerable. Further, its extension of the grounds for bringing a partial defence addresses situational vulnerability by making more visual the social context of crime to questions of state blame as the basis of the just deserts calculation. Finally, the UPD works towards the cultivation of a recognitive attitude over a punitive attitude by dismantling the individualist structure inherent in excuse doctrine.
Feasibility
Given the enduringly stringent approach to the rules of excuse, it is important to make the proposal for a UPD as conceptually feasible as possible. The book makes a measured call for incremental changes at the site of culpability evaluation towards a social justice approach. It is acknowledged that doctrine is limited in terms of its capacity to address the hardship of citizens more broadly. Rather, its role involves lessening the possibilities of such hardships through the underlying concepts and messages it perpetuates. In Fineman’s words, its role is akin to ‘collectively forming systems that play an important role in lessening, ameliorating, and compensating for vulnerability’,Footnote 135 and doing so by working towards enabling rather than disabling the autonomy of real people.Footnote 136
Feasibility is also relevant to the fact that the RPA is reconcilable with the current dominant approach to culpability evaluation. It is a central aspect of the argument that the recognitive approach supplement retributivism, as the hegemonic conceptual framework at this site. Though I sympathise with arguments that seek to override retributivism,Footnote 137 I propose a more modest approach that retains retributivism but tempers its harsher effects. Retributivism is built on an understanding of the liberal subject, which is reconcilable with vulnerable agency. This reflects the fact that, as Honneth argues, there is a universal aspect to some basic (and real) human needs that can exist alongside a commitment to more traditional forms of liberalism.Footnote 138 This matters because liberalism has a key role to play in upholding democratic equality. Without it, as Mackenzie notes, ‘vulnerability may be used to sanction unwarranted paternalistic forms of intervention’.Footnote 139 The reconcilability of recognitive justice with retributivism, and what this means at the point of culpability evaluation, is worked out across Chapters 3 and 4.
Finally, feasibility is relevant to the fact that the UPD fore-fronts the normative role of the jury as decision-makers in questions pertaining to excuse, emphasising their presence as representatives of the moral community. It arrives at this position by examining the doctrine of diminished responsibility in practice in Chapter 6, highlighting that, notwithstanding the medicalisation of partial excuse in recent times, in reality, the doctrine relies on an inherently normative test. The UPD works to further formalise this established approach within doctrine, and so acts incrementally to effect change.
Conclusion
This chapter serves as a paradigmatic springboard for the analysis of criminal responsibility principle, and excuse theory and doctrine, to come. It has sought to build on existing moral and political critical scholarship that calls for a more contextual understanding of personhood in the criminal law. Through the development of the RPA as a conceptual tool, it argues that vulnerability and recognitive theories could be relied upon to a greater extent within criminal law doctrine to advance and support more progressive reform proposals, but in a feasible way. In the interests of feasibility, then, Chapters 3 and 4 show how central tenets of criminal law (proportionality and parsimony) can be better served by the RPA than the current dominant approach, and they use this analysis to diagnose the duty deficits inherent at culpability evaluation owing to the weight afforded to rational agency at this site, at the expense of other relevant factors and capacities. Moreover, the analysis will show how recognitive justice may be reconciled with retributivism under the RPA, as a means of legitimising an expanded excuse doctrine.
Introduction
So far, we have clarified that a key part of the state’s duty to those it blames involves the advancement of social justice. Chapter 2 explored the substance of this duty: it identified the narrow understanding of, and the weight afforded to, the rational agency paradigm as a core barrier to social justice, and it provided a toolkit for its advancement at the site of culpability evaluation, in the form of the Real Person Approach (RPA). The purpose of this chapter and the next is to explain in greater detail the moral and social justice deficits to which the RPA responds, with a view to mapping out a clear justification for the Universal Partial Defence (UPD). These chapters are also central to the task of legitimising and guiding the reform proposal through showing how the RPA can be applied to culpability evaluation at a paradigmatic level.
This chapter is concerned with the moral deficit. The first part engages the principle of proportionality to show how the current approach to the rational agency paradigm leads to the disproportionate delivery of desert in two key ways: by maintaining an overly narrow basis of the desert calculus, and by failing to recognise degrees of moral blameworthiness. In so doing, it draws on key findings from social psychology to understand the lag between doctrinal expectation and the reality of human behaviour. Attending to the psychological forces underpinning the structure of doctrine at culpability evaluation is an important step in providing a richer account of rational agency as the dominant basis of criminal responsibility attribution, and recognising the ways in which it can be undermined. The middle section of the chapter shows how the principle of proportionality can be reinvigorated at the site of culpability evaluation by aligning it with a clear social justice objective. In applying the RPA, we can expose the moral deficits pertaining to disproportionate blame as a failure to recognise inherent and situational vulnerabilities that may bear on a person’s responsibility for actions. Armed with this understanding, from a recognitive justice perspective, we can set an expectation for how the law ought to respond to those who offend, through its doctrine, as a means of legitimising the case for the UPD.
In keeping with the feasibility feature of the RPA, any recommendation for reform at culpability evaluation must engage with retributivism as the overarching approach at present. As such, the latter part of the chapter argues that the elimination of retributivism is untenable and not necessarily preferable. Rather, there is scope to attune retributivism to a more morally justifiable position by loosening the hold of individualism at this site and allowing space for recognition of vulnerable agency. As such, the chapter supports a pared-back version of retributivism, one that is supplemented by a broader construct of agency guided by the RPA. Finally, the chapter makes the point that proportionality, as a conceptual tool, has the potential to be aligned with and reignited by the RPA while, conversely, granting the RPA not just feasibility but also a form of ready-made legitimacy, given the principle’s central place within the criminal law of a liberal democracy.
Proportionality and Just Deserts
The premise of this chapter is that responsibility for crime is being disproportionately applied to those who offend at the point of culpability evaluation (the moral deficit). At first glance, this charge might suggest a failure on the part of the principle of proportionality to deliver proportionate blame. However, later, we discuss how the reason for this disproportionate outcome has more to do with the hegemonic status of a narrow version of rational agency as the basis of the desert calculus, than with the principle of proportionality itself. Before setting out the moral deficit, however, it is useful to explain the significance and meaning of proportionality for present purposes, and to clarify its relationship with the idea of just deserts, in order to emphasise its centrality to criminal responsibility and its largely independent quality in terms of the overall purpose of the law.
Proportionality holds significance owing to its intrinsic relationship to the notion of fairness underpinning the criminal law, as recognised by the idea that blame and punishment ought to be delivered in proportion to criminal culpability.Footnote 1 This idea of fairness matters because it upholds the legitimacy of the criminal law by presenting it as a civilised and objective authority that strives for accurate assessments of blame. Indeed, for Billis et al., its significance cannot be underestimated:
[N]ot to assign proportionality its proper weight – symbolically and pragmatically – as both a temperate … method of controlling public power and a rational factor of social legitimacy, means not only to compromise traditional criminal law principles and human rights policies but also to jeopardise the functionality of legal systems in the long term.Footnote 2
The import of proportionality also lies in its use in defining penal theories. Von Hirsch explains that though penal rationales differ, they can be characterised as differing to the extent that they give credence to the principle of proportionality: a desert-based approach giving it most credence and something like a consequentialist account affording it less (e.g. crime control).Footnote 3 However, on closer examination, we can see that this assessment suggests a somewhat monolithic understanding of the concept that, though emphasising the importance of the principle, does not fully capture the nuance and complexity of its use as a scholarly measuring tool.Footnote 4 For instance, we might say that the two approaches take account of proportionality in different ways, rather than to different extents: what matters to consequentialists is a prospective proportionality of present means to future ends, whereas for retributivists what matters is a retrospective proportionality of present blame and punishment to past offence.Footnote 5 In this vein, Berman suggests that the version of proportionality adopted by a particular scholar tends to shift according to the objective they wish to achieve. He writes, ‘a principle of proportionality that best fits a positive retributivist justification of punishment will differ in function and content from one that fits a classical utilitarian justification (if one does)’.Footnote 6 Therefore, it is more accurate to speak of ‘principles’ of proportionality, given the rich and vast body of work seeking to define and understand its many forms, both in criminal law and justice studies, and most notably in the context of punishment and sentencing.Footnote 7
For the purposes of the RPA, the version of proportionality adopted maps an understanding of the concept in punishment literature, as a form of ‘side-constrained pluralism’Footnote 8 or ‘responsibility-constrained pluralism’.Footnote 9 Berman describes the latter as follows: ‘that punishment can be morally justified by pursuit of, or conformity with, a plurality of goods and reasons, but only if constrained by principles of distribution … that respect differences in one or another aspect of the offender’s “responsibility” for the offense’.Footnote 10 The concept of proportionality adopted in this chapter (and for the purposes of ascribing criminal responsibility), therefore, holds that in pursuing order in a way that advances social justice, the law must attend to the particularities of the accused in its assessments of culpability.
Within the confines of that assessment, key debates on the application of proportionality address a range of concerns; from differences in the target of proportionality (as between the severity of the offence and the culpability of the person who offends), the range of proportionality in terms of whether the principle also applies to leniency and not just excess, whether or not the concept ought to be understood in a positive or negative way,Footnote 11 and the perceived accuracy of the measure itself.Footnote 12 To gain a foothold on proportionality for the purposes of this chapter, the discussion relies on certain conclusions in relation to these discourses, as developed by Berman, on the basis that this understanding aligns with responsibility-constrained pluralism and targets penal excess. In particular, Berman proposes a version of proportionality ‘grounded in the principles of humanity’, in that it opposes punishments that are ‘excessively severe’ (i.e. it constrains punishment that is excessive, and is not concerned with punishment that is too lenient), in ‘absolute (though contextual)’ terms (such that it does not require comparison with other punishments imposed in other cases), and relies on a measure of excess relating to the individual’s ‘culpability in regard to wrongdoing’.Footnote 13 Therefore, for the purposes of this chapter, proportionality targets the culpability of the person who offends because it is focused on excuse as a means of advancing social justice in a doctrinal sense. It is also more concerned with avoiding penal excess and less so with the concept of applying too little responsibility, for reasons discussed in Chapter 4 in more detail relating to the harm created by even the lightest criminal justice intervention, and the fact that the site of culpability evaluation is already prone to punitiveness. Finally, the chapter takes seriously the accuracy of the measure of proportionality at culpability evaluation by emphasising its scalar quality.
On the question of accurate measurement, proportionality tends to be positioned as central to retributivism,Footnote 14 because it is seen as the gauge for determining backward-looking responsibility and punishment,Footnote 15 and particularly in the context of discourses on just deserts.Footnote 16 The end of this chapter is concerned with reconciling the RPA with retributivism, and so it is useful to clarify the relationship between proportionality and just deserts here. As mentioned previously, proportionality is often invoked to define or constrain retributivism in different ways.Footnote 17 But beyond a mere restraint on state condemnation, proportionality can also be perceived in a more positive sense, as giving normative content to the responsibility constraint.Footnote 18 Such content relays that it is wrong to condemn those who are innocent, and that those who are found guilty should not be condemned more than they deserve.Footnote 19
What people deserve from the state when they offend, then, is an important component to which proportionality relates in a retributivist context. This sentiment is echoed by Brink when he writes: ‘[Retributivism] invokes the idea that blame, sanction, and punishment are fitting responses to an agent who is culpable or responsible for wrongdoing and that culpable wrongdoing deserves or merits these responses.’Footnote 20 State punishment may be sanctioned only to the degree that it is proportional to what someone deserves. Desert in this sense speaks to two distinct factors, the harm or wrongness of the act itself and the culpability of the individual who committed it. Brink puts it thus: ‘[P]unishment should be proportional to desert, which should be understood as the product of two independent variables, wrongdoing and culpability or responsibility.’Footnote 21 As such, the principle of proportionality adds an extra layer of legitimacy to the retributive computation by claiming that the level of blame and punishment deserved must map the level of harm done, and the culpability of the accused. Excuses assume the wrongness of the act and so are largely concerned with the question of culpability. Blame and punishment must be proportional to that culpability assessment to be legitimate.Footnote 22 It is the position of this chapter that proportionality, on this understanding, is worth maintaining, but that it can be understood as accommodating more than blame, sanction, and punishment as ‘fitting responses’ to culpable wrongdoing.
For, there is an argument to say that the principle of proportionality is failing to deliver on in its core task of preventing disproportionate responses at the site of culpability evaluation. The problem does not lie with the principle itself, however. Rather, it is the doctrinal scaffolding at this site that prevents the principle from operating more justly, and it does so in two respects: first, it restricts the basis of desert and, second, it fails to facilitate degrees of desert.
The [Dis]Proportionality Problem at Culpability Evaluation: (i) A Narrow Basis of Desert
We have explored how the moral blameworthiness of the accused is a key element to which desert relates in the rendering of proportionate justice. Once the positive elements of the offence are established, excuse doctrine is centrally concerned with evaluating the culpability of the accused. The core claim of this section is that excuse doctrine is too narrow, which means that the basis of the desert calculation is at risk of assigning criminal responsibility disproportionately, because not all relevant factors are given credence in assessments of blameworthiness. The reason excuse doctrine maintains its restrictive structure is due to a bounded understanding of the rational agency paradigm, and the weight it is afforded beyond other potentially relevant factors and circumstances.Footnote 23
Excuse doctrine is restricted in the sense that attempts to introduce new defences are rare,Footnote 24 and rarer still are such attempts found to be successful.Footnote 25 Excuses are further restrictive in that they are only made available on the basis of a particular view of the person built upon a narrow, compatibilist account,Footnote 26 such that, short of complete absence of reason or an overwhelming external subjugation of will, the law does not entertain claims to extenuating circumstances prior to conviction.Footnote 27 (While a wider array of factors may be taken into account at sentencing, Chapter 5 argues the case that they should be dealt with at the pre-verdict stage owing to the moral significance of this site.) Moreover, though justifications for actions tend to be more generously applied, the jurisprudence on full excuses indicates a markedly restrictive trend in the courts.Footnote 28
The excuses that are recognised are tightly drafted and tend to be narrowly understood.Footnote 29 For instance, in England and Wales, the M’Naghten RulesFootnote 30 set a high bar in terms of showing lack of rationality.Footnote 31 In particular, the knowledge requirements of the test (pertaining to the defendant understanding the ‘nature and quality’ of the act or its ‘wrongness’) are based on an evaluation of cognition, and do not extend to volitional or emotional capacities.Footnote 32 Recently, the wrongness limb of the test has been made even stricter by the requirement that it include an unawareness of both legal and moral wrongfulness of the act on the part of the accused,Footnote 33 when previously the test required unawareness of legal wrongness alone.Footnote 34 The consequence, as Mackay notes, is that ‘any knowledge of wrong, whether legal or moral, will ensure that D is outside the M’Naghten Rules’.Footnote 35 Moreover, the ‘defect of reason’ requirement must be of an extreme nature in order to be considered by the jury, further restricting the availability of the defence.Footnote 36 Even in the case of more generous definitions, (for instance, in Ireland, which allows a volitional component to the test), the reality is that the defence is seldom invoked and rarely successful.Footnote 37 A similar complaint may be made against the defence of duress.Footnote 38 In the context of mental health conditions, in particular, however, the restrictive nature of the insanity defence, and the fact that diminished responsibility only applies in the context of homicide offences, sits uneasily alongside figures that point to the high rate of people with a mental disorder in prison.Footnote 39 This is not to say that everyone with a mental disorder ought to qualify for a defence or partial defence.Footnote 40 Rather, it is to point to the potential of such instances bearing on someone’s reasons for acting in the context of the particular crime. For if it is accepted that post-verdict recognition of factors that undermine culpability is insufficient,Footnote 41 then what is required of the law is to recognise and respond to this deficit at the site of blame, as an integral point of moral interaction between person and state.
In the context of partial excuse, in particular, Chapter 6 takes the example of diminished responsibility in England and Wales to provide greater detail on how the present definition of the defence is overly narrow owing to a reliance on a medicalised reading stemming from a restrictive understanding of the rational agency paradigm. Interestingly, in this context, an analysis of the law in practice shows the efforts of the court, at times, in seeking to circumvent such a restrictive understanding, in order to meet the justice requirements of a given case. The apparent tendency of courts to be more flexible with applying diminished responsibility, as compared with the insanity defence, may have to do with the fact that a successful partial excuse still results in a conviction for manslaughter, whereas a successful insanity defence provides an acquittal.Footnote 42 Chapter 6 argues that such moments of flexibility in interpretation are better reflected within doctrine itself, as representing a more authentic and generous account of personhood that ought to apply across all offence categories. For now, however, it is sufficient to note that on the aforementioned reading of doctrine, the retributive desert calculus is bounded by a narrow understanding of rational agency, because the present law restricts the information deemed relevant to forming the basis of the question regarding what it is that people deserve when they offend. Desert rests upon an assumption that a specific culpable act is attributable to a very particular view of the person, and one that, this chapter argues, is no longer appropriate.
It is important to acknowledge that the central conceptual concern with expanding excuse doctrine lies in a presumption that doing so would unleash unwarranted leniency for those who may be excused from crime. There exists a real and deep fear of people who have committed wrongful acts not being held accountable. This sentiment bears out in criminal law scholarship with a palpable mistrust of causal theories of excuse. For instance, in contemplating the scope of excuses, though Dressler admits to there being value in the expansion of defences, he avoids condoning the introduction of new excuses, citing Fletcher’s cul-de-sac of determinism.Footnote 43 Therefore, little progress has been made in reforming excuse doctrine due to the age-old dilemma of determinism versus free will. Given the strength of this view, and its restrictive (and, I argue, unjust) consequences, this concern is worth taking seriously and, indeed, forms the basis of the discussion in Chapter 7. The core aim of that chapter is to resolve the problem of causal explanation and responsibility for the purposes of introducing the UPD, through a revised rationale for the doctrine of partial excuse in the form of a bounded causal theory.
In the meantime, this section is concerned with providing the impetus to revisit the causal question explored in Chapter 7, and to further justify the UPD proposal, on the basis that the exclusion of wider circumstances for consideration in the context of excuse doctrine (as the grounds of the just deserts calculus) is no longer defensible because current excuse doctrine is constructed with a core dispositional bias that results in disproportionate blame. The restricted conception and hyperfocus on rational agency under the present dominant paradigm skew the lens through which culpability is assessed, leading to the exclusion of circumstances and conditions (vulnerabilities) from explanations for action, that have a bearing on questions of culpability.
Uncovering the underlying psychological explanations for this position emphasises the flawed nature of how we presently blame people, and foregrounds the need to respond in a way that recognises (in as much as we can) the reality of human behaviour, rather than the ideal, particularly when the consequences result in criminal condemnation. This section provides an overview of established findings in social psychology as a key evidence base to inform change through the application of the RPA.
How Real People Perceive Behaviour: The Fundamental Attribution Error
Chapter 2 has already argued that individuals are heavily influenced by situational factors, and the point is well established in relevant social psychology literature.Footnote 44 Here, we explore this idea in more detail, highlighting how the position of the person as subject of culpability evaluation/moral judgement bears on the meaning of doctrine, and how it is interpreted through a situational lens. Indeed, there is an extensive literature on causal attribution in the field of social psychology, concerning ‘the persistent search for the meaning of behaviour, and the effects of the active involvement of the perceiver’.Footnote 45 As Heider notes,Footnote 46 humans typically explain behaviour as either dispositional, whereby a behaviour or occurrence is perceived as being due to personal factors such as character, capacity, or emotion; or situational, where a behaviour or occurrence is perceived as having an external explanation. Though individuals, particularly those in an official role, tend to believe that they are objective and balanced observers of the behaviour of others,Footnote 47 attributional studies have established that we are predisposed to making external attributions about our own behaviour, and internal attributions about the behaviour of others. In other words, we tend to blame our own poor behaviours or outcomes on matters external to us, but the bad behaviours of others on themselves. We are less likely to recognise both internal and external aspects as explanations for behaviour. Lee Ross was the first to term this tendency the ‘fundamental attribution error’,Footnote 48 with a view to capturing the inherent shortcomings of the lay psychologist, that is, someone who ‘seeks to explain behavior and to draw inferences about actors and their environments’.Footnote 49 He defines the error as a ‘general tendency to overestimate the importance of personal or dispositional factors relative to environmental influences’.Footnote 50
The literature asserts a number of explanations for why perceivers are subject to dispositional bias when evaluating another person’s behaviour. A detailed analysis is beyond the scope of this discussion, suffice it to summarise that the tendency to focus on agents as causes stems from a number of potentially overlapping factors,Footnote 51 such as the presence of an observable actor, and the need to make sense of circumstances in order to assuage anxieties.Footnote 52 More recently, Berry and Frederickson put forward a unifying theory of the fundamental attribution error, drawing on a combination of the interaction between theory of mind and findings from cognitive science that point to a strong tendency to overestimate the existence or role in events of human (or human-like) intentional agency.Footnote 53
The fundamental attribution error warrants attention more broadly because it has relational implications that bear on factors concerning justice, such as bias and prejudice,Footnote 54 and moral judgement.Footnote 55 Its implications for law have been the subject of rigorous investigation and debate in recent times,Footnote 56 though the practical impact of such efforts has borne less fruit.Footnote 57 Understanding how such psychological barriers operate at culpability evaluation allows us to capture its significance for the purposes of justice (in terms of shortcomings and decision-making/judgement biases) and to work towards offsetting the effect, as recognised through the features of the RPA.
From a doctrinal perspective, dispositional bias is heavily imprinted on the nature and dominance of the rational agency ideal,Footnote 58 which underpins retributivism at the culpability evaluation stage of the criminal law, and amounts to what Dripps terms, the ‘fundamental retribution error’ [emphasis added].Footnote 59 Excuse doctrine, in particular, encapsulates the tension between dispositional and situational attributions. For, as Snyder and Higgins remark, excuse making is ‘the process of shifting causal attributions for negative personal outcomes from sources that are relatively more central to the person’s sense of self to sources that are relatively less central’.Footnote 60 The influence of the fundamental attribution error therefore reveals itself in doctrine and principle through the limited capacity of the criminal law to allow for excuses or explanations, beyond the ‘free choice’ of the person. In particular, Dripps distinguishes between excuses that derive from situational factors, and those that may be attributed to third-party wrongdoing (e.g. provocation), noting the tendency of legislators, courts, and juries to set an overly restrictive scope for excuses which derive from the former category, in particular.Footnote 61 Further, attempts throughout the years to introduce broader grounds for excuse, such as those relating to poverty and deprivation, have failed despite the evidence that such circumstances can act to undermine the cognitive, volitional, and emotional capacities of those who offend.Footnote 62 Social psychology and cognitive psychology reinforce our scepticism about the narrow interpretation of excuse in criminal law, and its tendency to responsibilise the most vulnerable in our society: ‘When the defendant points to situational factors other than wrongdoing by another human being, the law’s understanding turns into condemnation.’Footnote 63
In addition to the doctrine itself, it is worth noting that the fundamental attribution error is also reinforced by the real-world interactions taking place at culpability evaluation. For instance, in 1977, Ross signalled the greater significance of errors of attribution in the context of ‘role-constrained’ encounters,Footnote 64 such as that between legal decision-maker and defendant. In such instances, he highlights how formal (and even informal) roles can impede interactions, and therefore bias both the data available to the decision-maker and the judgments that supervene such information.Footnote 65 More recent studies have shown how other factors relevant to criminal blaming practices tend to exacerbate the impact of the fundamental attribution error on decision-making practices. For instance, Kubota et al.’s study on person attributions and stress found that decision-makers under acute physiological stress have less cognitive capacity to analyse the impact of situational factors on a person’s behaviour, and so are more likely to overemphasise dispositional factors when attributing responsibility. This tendency is evident in the context of everyday decision-making and is even stronger in those making judicial decisions about criminal behaviour, where the consequences are particularly significant.Footnote 66
Another line of research demonstrates how the nature of the behaviour or event in question can impact the mindset of the decision-maker. In particular, a dispositional mindset is reinforced where the decision-maker perceives that the behaviour or event in question is a threat to society. Research by Tetlock et al. supports the contention that a sense of threat to social order tends to activate a ‘prosecutorial mindset’ which is identifiable by ‘a correlated cluster of attributions, emotions, punishment goals and punitiveness’Footnote 67 and which is motivated towards reasserting civil order.Footnote 68 Therefore, those in a position of seeking to impose order are predisposed to identifying disruptive behaviour and attributing it to the personal disposition of the actor. Furthermore, the fundamental attribution error holds particular import within the context of criminal culpability evaluation because of the implications faced by the accused. In a procedural sense, Shaver highlights this aspect in terms of the ‘attribution of causality’ asked of the jury.Footnote 69 She notes:
[T]he defendant’s fate depends on the attribution that is made, with a personal attribution leading to a guilty verdict and an environmental attribution (such as justifiable self-defense) leading to acquittal. It is less apparent though equally true that … the personal characteristics of perceivers (here, the jury) can affect the resulting attribution. … [E]ven in situations which emphasize objectivity in interpersonal evaluation, perceivers bring with them attitudes and values that can affect their decisions.Footnote 70
Taking these findings together, as an institution underpinned by a restrictive rational agency paradigm, the law’s inherent bias results in a systematic distortion of blame by failing to create a means of giving due credence to situational factors with a view to at least attempting to offset the dispositional bias of criminal doctrine and criminal justice decision-makers. Based on the rigour and cogency of the research just highlighted, Ross’ observation almost half a century ago suggesting the implied effect of attribution error on social justice outcomes seems more relevant than ever:
Individuals who enjoy positions of power by accident of birth, favorable political treatment, or even their own efforts also tend to enjoy advantages in self-presentation.Footnote 71
More recently, he has been joined by others, like Dripps, who argues that an understanding of the fundamental attribution error, and its consequence for the accused, ought to inform policy changes and reform within the criminal law in order to account more accurately for the fact that those who are involved with the justice system have already been subject to dispositional bias. On a theoretical level, Dripps further notes that the fundamental attribution error complicates efforts to institutionalise retributive theory, which results in a systematic over-assessment of blameworthiness.Footnote 72 For him, this puts an impetus on the law to ‘account for the risk that decision makers will overestimate personal as opposed to situational factors’.Footnote 73
The [Dis]Proportionality Problem at Culpability Evaluation: (ii) Failure to Recognise Degrees of Desert
A related point that brings into question the desert calculus at culpability evaluation pertains to well-established findings in cognitive science relating to rationality and reason. The capacity to reason and reasons responsiveness underpin doctrines of responsibility, and there is a commonly held perception that rationality plays a dominant, if not exclusive, role in such reasoning.Footnote 74 However, findings from cognitive science suggest that reliance on rationality/logic alone does not reflect an accurate account of human reasoning. For, reasoning is highly error-prone and subject to a number of heuristics and cognitive biases.Footnote 75 In particular, reasoning and decision-making have been found to be largely automatic and inherently driven by social context,Footnote 76 rather than deliberate, and logical. As such, our behaviour comes about less by conscious decision-making and more by mental processes ‘put into motion by features of the environment … that operate outside of conscious awareness and guidance’.Footnote 77 Further, studies have shown how people are generally poor at discriminating the motivation/reason for their behaviour and tend to generate rationales post hoc.Footnote 78 Thus, how we make decisions is fluid, not fixed.
These findings raise questions about the legitimacy of relying on concepts like rationality and reasoning as the central basis for ascribing criminal responsibility. As Morse and Brink have recognised, such insights reinforce an understanding of culpability as scalar in nature, which warrants a more tailored response when attributing desert proportionately. For Morse, the present structure of excuse doctrine is unjust because it results in people being punished more than they deserve,Footnote 79 due to the fact that the narrow account is at odds with the range of cognitive and volitional capacities evident in the human psyche.Footnote 80 Similarly, Brink is of the view that retributive justice requires that blame (and punishment) ought to be rendered in proportion to culpable wrongdoing in order to avoid the normatively dubious outcome of ‘treating many cases of partial responsibility as if the individuals were fully responsible’.Footnote 81 The point is developed further in the context of excuse theory in Chapter 7. For now, it suffices to note that the failure of excuse doctrine (for the most part) to reflect partiality of desert contributes to moral injustice through the delivery of disproportionate blame.
Using the RPA to Reframe and Respond to Moral Injustice
The aforementioned problems highlight the need to address the hegemony of rational agency in order to provide a broader basis from which the principle of proportionality may operate, and to recognise the nature of rational agency (and therefore, responsibility), as scalar, and not fixed/binary. As such, the RPA seeks to reinvigorate the question of proportionality by aligning it with the positive objective of advancing social justice at the site of blame. It argues that proportionality will operate more effectively where it engages with a more authentic account of personhood as its basic paradigm. Conversely, ensuring that proportionality is inherent to the features of the RPA lends it legitimacy as a new, but grounded, way of viewing the penal subject. Further, the task of the RPA here is to reframe the moral problem as a social justice one – in other words, to alert the criminal law to its duty in relation to the person at the site of blame, and to provide guidance on how it ought to respond through the promulgation of recognitive justice.
Disproportionate Desert as Failure to Recognise Vulnerability
Applying the RPA to culpability evaluation lends a social justice frame to what is usually conceptualised as a moral problem,Footnote 82 by fore-fronting the significance of inherent and situational vulnerability to assessments of past behaviour. In so doing, the RPA aims to facilitate a more psychologically accurate and contextually aware desert calculation, thereby offsetting the moral deficit outlined earlier.
As discussed in Chapter 2, the view of personhood underpinning the RPA is reliant on the concept of vulnerable agency. Through this lens, the law’s proportionality problem can be characterised as a failure to account for autonomy-related vulnerabilities specific to the person undergoing culpability evaluation, as a result of the dominance of a particular conception of the rational agency paradigm. As Mackenzie notes, acknowledging the experience of vulnerability as particular to and inherent in the individual pushes back against a view of personhood enthralled by liberal agency.Footnote 83 When blameworthiness is determined pre-verdict, the narrow basis of desert amounts to the exclusion for consideration of circumstances and conditions that are innate to a more authentic account of personhood.Footnote 84 Moreover, the failure of doctrine to acknowledge the scalar nature of rational capacity at a greater level (beyond existing partial excuses, and at the guilt phase) is tantamount to the state’s misrecognition of the psychological reality of the subject that it is bound to protect.
The proportionality problem can also be framed as a misrecognition of situational vulnerability whereby environmental and structural factors that compound inherent vulnerability are ignored at culpability evaluation, again, due to the narrow focus of the rational agency paradigm. Rational capacity and reasoning are situated phenomena meaning that realistic understandings of autonomy ought to take account of external factors as impediments to agency.Footnote 85 The findings discussed previously, regarding the individual as moral object at the mercy of heightened dispositional biases at decision-making within responsibility ascription, also signifies the role of pathogenic vulnerability.Footnote 86 Culpability evaluation is a key point of interaction at a site of uneven power dynamic as between person and state, with the potential to impede autonomy and generate new forms of harm. This point is discussed further in Chapter 4 which shows how the attitude underpinning doctrine at this site reinforces broader punitive responses that may be framed as social injustice through misrecognition.
Ultimately, then, employing the RPA allows us to characterise the narrow construct and application of the present paradigm as excluding consideration of inherent and situational vulnerabilities that bear on people’s autonomy.
Responding with Recognitive Justice
The presence of such vulnerabilities ground the case for a recognitive justice response. As a key feature of the RPA, recognitive justice has a role to play in affirming the reality that respecting personhood demands particular institutional responses to safeguard autonomy and offset harms arising from vulnerabilities, as outlined earlier. As recognised in Chapter 2, though there is a limit to the role doctrine can play in attenuating harm, there remains an obligation upon it, as an integral form of normative scaffolding, to acknowledge the social context of crime, and the role of legal principle in influencing autonomy-related outcomes of those who offend.
Through deploying the tools of excuse theory, recognitive justice at culpability evaluation may be realised through the following measures. First, to offset inherent and situational vulnerability, it is necessary to facilitate consideration of prior factors and circumstances that may bear on culpability beyond the confinement of the rational agency paradigm. This is a controversial point, and the obstacles to deepening the basis of culpability evaluation are considered in detail across Chapters 5 and 6, which inform the development of a bounded causal theory of partial excuse in Chapter 7. Second, acknowledging a realistic account of human psychology that has established the contingent and scalar quality of rational agency and the imperfect nature of moral reasoning wholesale requires the extension of doctrine to facilitate recognition of degrees of desert through the introduction of a partial excuse that applies to all offence categories. This is a complex proposal, and the challenges facing such a development form the basis of the discussion in Chapter 5, and the defence itself is considered in Chapter 8. In the meantime, Chapter 4 elaborates on how recognitive justice generates a duty to offset pathogenic vulnerabilities of the person at the site of culpability evaluation by creating space for broader situational factors to be considered in order to promote autonomy at the point of blame.
Feasibility, and the Role of Retributivism in the RPA
The feasibility of the RPA lies in the fact that, though it is critical of the rational agency paradigm, it is not calling for its demise nor proposing a completely novel paradigm, either. Rather, the RPA, as a guiding conceptual framework, seeks to retain alignment with, and reinvigorate, core criminal law principles (proportionality and parsimony), as well as the necessary flexibility to work with both retributive and non-retributive accounts of criminal law. On this point, the RPA might be described as indifferent to the presence of retributivist goals, provided there is some level of accountability required of the person (which may or may not be classified as retributive) and only to the extent that the version of retributivism in question does not contribute to a greater punitive logic, as discussed in detail in Chapter 4. For present purposes, therefore, this section clarifies the version of retributivism to which the RPA can relate, and highlights the extent to which stronger versions of retributivism have been maligned and muted in scholarship, which is taken up in more detail in Chapter 4.
Retributivism is a broad church and best understood as an umbrella term for a cluster of theories that share certain commonalities.Footnote 87 Most agree that retributivist accounts are closely associated with the question of desert,Footnote 88 which is central to the justification for state punishment, levels of punishment, and (less so) the form that punishment ought to take. So, whether or not a theory is classified as retributivist can shift, usually according to the role of desert as central or lesser, and we might distinguish a ‘purer’ form of retributivism from accounts that include other instrumental factors in their theories of punishment, which are classified as ‘hybrid’, ‘mixed’, or ‘pluralist’ theories.Footnote 89
Within the retributivist camp, a common way of loosely classifying theories is in relation to this perceived retributivist potency, or severity.Footnote 90 What may be classified as ‘weak’ accounts see desert as a necessary but not sufficient condition for punishment, so that other factors, such as deterrence or incapacitation, must also be taken into consideration.Footnote 91 Moderate accounts are more likely to see desert as both a necessary and sufficient condition for punishment, but maintain the position that there may be good reason not to punish in certain circumstances, and so this form does not belie a duty to punish.Footnote 92 Finally, ‘strong’ retributivist accounts can be characterised as seeing desert as both a necessary and sufficient condition for punishment and, moreover, maintaining that desert belies a duty to punish on the basis that it is morally right.Footnote 93 (Though between them, there are many contested points, much of the discourse may be characterised as ‘in fighting’. As Husak observes: ‘The invective in quarrels among retributivists can be greater than that expressed in debates between retributivists and those who presuppose an entirely different normative framework.’)Footnote 94
The type of retributivism that is compatible with the RPA is the weak, positive version, whereby desert gives us reason to punish, but that reason is insufficient in itself. This version therefore permits space for instrumental considerations and holds proportionality as its core legitimating principle. Because we’re talking about retributivism in the context of responsibility, it is more closely associated with the question of desert. As Brink observes, ‘[r]etributivism claims that the reactive attitudes and practices of blame and punishment should track desert and that the basis of desert is culpable wrongdoing and implies that blame and punishment ought to be proportional to culpable wrongdoing’.Footnote 95 The reason that the weak version is more compatible with the RPA is that it is furthest away from the version of retributivism associated with suffering which, in Chapter 4, is linked to a wider punitive logic that the RPA seeks to ameliorate.
In sum, then, my claim is that there is some value in responding to wrongdoing on the basis of desert, that that response ought to be proportional to the culpability of the person who offends, and that the basis of the proportionality test ought to facilitate consideration of relevant vulnerabilities. This proposal is retributivist in the sense that it is backward looking, but it limits the retributive reach because it does not speak to the idea of suffering, which is not necessarily associated with retributivism, though the latter is often a conduit for it.Footnote 96
Diluting the Potency of Retributivism
The weak account of retributivism, which may be characterised as a form of accountability on some interpretations, is a reasonable reading of retributivism in present times, and accords with a tendency in the literature to dilute the potency of the concept, though there are those who would reject it outright. This section grapples briefly with the significance of some of the more provocative discourses in this area for the RPA. Retributivist theories experienced a revival following the perceived failure of the rehabilitative ideal in the post-war era,Footnote 97 and a fear that the concept of responsibility for crime was being eroded.Footnote 98 The consequences have been controversial and present, in Lacey and Pickard’s words, ‘a very mixed picture in terms of both effective limits on punishment and real respect for offenders as persons’.Footnote 99 Indeed, recent decades have seen renewed and increasingly creative challenges to the concept, largely in response to its perceived connection to the phenomena of mass incarceration and overcriminalisation.Footnote 100
The RPA is in broad alliance with the overall sentiment of theorists who tend to denounce retributivism as indefensible as a justice aim in the face of both moral and social injustice.Footnote 101 For instance, Kelly’s call for a ‘just social order’, which asserts that moral blameworthiness and legal liability ought to be separated, is built on the premise of ‘fundamentally, acknowledging and addressing the basic needs and potentialities of all members of society, including those who break the law’.Footnote 102 In associating retributivism with culpable wrongdoing, Kelly argues that retributive justice that relies on evaluations of character/capacity and circumstance is ‘largely irrelevant’ to legal guilt finding.Footnote 103 Moreover, she asserts that it is both ‘possible and urgent’ to remove retributivism as a foundation of justice.Footnote 104 In her discussion of excuse, Kelly demonstrates the ‘poor fit’ of retributivism based on the fact that, in reality, courts are reluctant to allow truly particularised evaluations of culpability, by design (through narrow excuse offerings), for reasons of expediency.Footnote 105 Caruso, too, puts forward powerful moral reasons for its rejection, most relevant of which focuses on the fact that given ‘the various ways moral and legal culpability can be misaligned, retributivism suffers from the fact that a person can easily be found criminally guilty and eligible for retributive punishment without being (fully) morally blameworthy for their criminal wrongdoing’.Footnote 106
While sympathetic to these arguments, I am curious about the feasibility or benefit of so overtly rejecting retributivism, given it is not always clear that scholars are fully abandoning the concept, due to the numerous competing versions in existence.Footnote 107 The presumed association between retributivism and punitiveness or suffering also tends to suggest that retributivism is incompatible with humane approaches to justice.Footnote 108 For instance, Lacey and Pickard question the apparent sense of entitlement to hostile reactions against those who offend and highlight the harmful impact of those reactions.Footnote 109 The authors envisage an alternative, clinical approach to accountability (rather than retributivism) whereby responsibility ascription is divested of aversive features, and punishment is deployed with a therapeutic emphasis in order to integrate justice and rehabilitative models. The RPA does not reject retributivism, but rather calls attention to the fact that meanings of retributivism have tended to be diluted over the years and the differences between retributivist and non-retributivist objectives are becoming less clear and arguably, therefore, less salient. Indeed, it can be difficult to fully reject something when its meaning is indeterminate to such an extent that the utility of employing the term is in doubt,Footnote 110 and difficult to do so with any great impact when it is so assumed to be imbedded in current principle.
The bulk of the discourse on retributivism takes place in the punishment and sentencing arena. What is interesting to observe for present purposes is that increasingly, often what retributivism is, is defined by what it is not. In recent times, the line between retributivism and consequentialism is blurring. This is particularly evident where theories can be interpreted as both retributivist and consequentialist/non-instrumentalist in nature.Footnote 111 Additionally, there is more overt recognition of the fact that retributivism appears to have shifted into being a subset of consequentialist justifications of punishment. For example, Berman questions the assumed taxonomy, and argues:
[I]t seems increasingly fitting to view retributivism as a subtype of consequentialist justifications for punishment – a ‘retributivist consequentialism’ that can be meaningfully contrasted with varieties of ‘non-retributivist consequentialism’ – rather than as an alternative to them.Footnote 112
In this vein of literature, there is a clear trend towards understanding retributivism as some form of limit on instrumentalist accounts, whether positive or negative. For instance, Berman speaks of ‘responsibility constrained pluralism’, while Duff calls for a ‘side-constrained consequentialism’ approach.Footnote 113 We see this former version play out in Husak’s ‘version of retributivism’ whereby ‘the criminal law performs several legitimate normative functions in addition to implementing a principle of retributive justice that assigns value to treating offenders as they deserve’.Footnote 114 This shift in the role of retributivism at the point of punishment reflects a more enduring loss of confidence in the ability of retributivism to form an adequate theory of punishment in its own right. For example, in their defence of the republican account, Braithwaite and Pettit posit retributivism as ‘inadequate’ due to its failure to provide comprehensive answers to the ‘“how”, “who”, and “why” questions of punishment’.Footnote 115 From the perspective of this book, this work on retributivism at punishment lends support for a lesser role for retributivism at the point of culpability evaluation.
The RPA is being applied to a space that may be described as retributivist in nature in that it responds retrospectively to the culpable wrongdoing of an individual based on their desert. Understanding that even at culpability evaluation, retributivism can exist in tandem with instrumentalist objectives, invites us to consider what else matters at this point – beyond the desert of the person – to further the interests of justice. This question is constrained by the fact that the function of the law here is carried out through doctrine, and so does not enjoy the same flexibility and discretion available at sentencing. Therefore, the nature and function of blame at this point cannot really be just consequentialist or focused on effects, because of their inherent unpredictability. This follows Duff’s intuition in the development of his communicative theory of punishment. For Duff, retributivists are alive to an intrinsic value in condemnation that is related to desert, but something different to consequentialism. In asking the question ‘what do we owe to those whom we hold responsible?’ Duff fore-fronts the relational and reciprocal exchange taking place when someone is answering for crime, opening the possibility for a more complex understanding of desert in this context.Footnote 116 This account of responsibility is reflected in recent scholarship considering the role of desert as something more orthotropic or composite in nature. For instance, Katz’ relational view of retributivism takes account of both the punisher and the wrongdoer, whereby the former must react to the wrongdoing but also must react ‘in virtue of the relations that exist between the parties’.Footnote 117 Further, Netanel Dagan and Julian Roberts present a ‘dynamic censure’ model, which accommodates both backward- and forward-looking consideration of the individual within the concept of desert.Footnote 118 Though applying in the punishment context, this type of thinking signals a fresh perspective on an enduring concept, particularly in terms of the recognition of the status of the wrongdoer and the moral significance of their future actions.Footnote 119
As such, we might arrive at a position where it becomes necessary to clarify what function retributivism serves at desert. The reasons why retributivism may be maligned are taken up in Chapter 4, as this very much has to do with the idea of retributivism entertained at punishment, which relates to the concept of ‘suffering’. For now, it is sufficient to state briefly the reasons why a version of retributivism is worth maintaining at culpability evaluation. First, at a fundamental level, retributivism connects condemnation with a past action and, in this sense, gives, in Duff’s terms, a ‘normative justification’ for that condemnation.Footnote 120 This backward-looking function is important because it sets the terms of the communication between the individual and the state when a wrong is committed, notwithstanding the outcome. In this sense, it communicates censure for wrongdoing,Footnote 121 and that censure has a role to play in practices of responsibility that ‘enhance us as moral agents’.Footnote 122 Of course, the content of that communication is also significant, in terms of how the state responds to the individual. In addition, some scholars argue that retributivism is a mechanism for upholding the status of the victim,Footnote 123 (though retributivism (along with other approaches) has also been criticised for not giving adequate voice to the victim either).Footnote 124 This view is justified on the basis of respect for the individual with them being ‘treated as the kind of being who can be held responsible’.Footnote 125 We might say, then, that the key function of retributivism is to facilitate a pathway to accountability. Whether or not retributivism is essential in doing this remains an open question, however. For example, Lacey and Pickard put forward a version of accountability in their clinical model that aligns with the justice model but promotes responsibility without the ‘worthiness’ of blame.Footnote 126
In supplementing retributivism with recognitive justice, it is hoped that this approach can align with Lacey and Pickard’s goal at the culpability evaluation stage, in terms of acknowledging and forefronting the fact that ‘responsibility tracks agency’.Footnote 127 The RPA imbues the site with a fuller account of agency that aligns with social justice mores at a key point of moral exchange between state and person. The UPD, which manifests recognition of vulnerable agency through expanding the basis and nature of desert, can work with retributivism. We can see support for this approach from scholars like Husak, who tentatively suggests how retributivists can address problems like overpunishment ‘by invoking considerations of desert to either narrow range of offences or to enlarge the application of defences’.Footnote 128 In the latter context, Husak is approving of the idea of a partial defence which is analogous to full excuses or justifications. In doing so, he does not reject desert altogether but presents grounds that support a claim that ‘fewer persons deserve punishment than positive law inflicts. And a good many of the persons who do deserve punishment deserve less of it’.Footnote 129 Indeed, he concludes:
Desert-based arguments can be used to bring about reductions in the severity of sentences either by narrowing the number of and breadth of offenses, or by increasing the scope and application of defenses. Although the latter path is probably explored less frequently, it may have the greater potential to reduce our notorious propensity to be overly harsh.
Therefore, in aligning proportionality and desert with the RPA, this chapter is engaging with a desert-based argument in order to achieve a reduction of over-blaming (which is characterised as social injustice) by increasing the scope and application of partial excuse through the UPD.
Conclusion
This chapter has seen the RPA engage with the principle of proportionality, as a central tenet of criminal law, with a view to identifying the factors that undermine autonomy and showing how the principle can be reinvigorated at the site of blame, when turned towards the greater objective of advancing social justice. In particular, the RPA was applied to diagnose disproportionate desert as a failure to recognise vulnerability in the way that it operates from an overly restrictive basis of desert and fails to acknowledge degrees of blameworthiness. The expansion of the basis and nature of the desert calculus was supported by established findings in mind sciences, which provide a more fulsome account of the human psyche.
Framing this moral deficit as a failure to acknowledge vulnerability then grounds the case for a recognitive justice response from the criminal law as a means of offsetting the narrow conception and binary nature of the rational agency paradigm at culpability evaluation. In the interests of feasibility, the chapter showed how it is possible to achieve recognitive justice at this site in a way that accords with the retributivist paradigm, rather than demanding its abandonment. For we can preserve a version of retributivism, in conjunction with the closely aligned principle of delivering just deserts, but supplement it with a broader desert base and a scalar quality that offsets the moral deficit. Moreover, in acknowledging the role of retributivism at culpability evaluation, the chapter has shown that a form of personal accountability is required to underpin the UPD. This requirement will be fed through to the rationale for partial excuse developed in Chapter 7, represented through the use of capacity theory as a limit on a causal approach, resulting in a ‘bounded causal theory’ of partial excuse.
On one level, the proportionality argument is enough to justify the proposal for a UPD, because the moral deficit is sufficiently problematic to warrant a response in itself. However, a core aim of this book is to bring to light an additional, and arguably more nuanced, phenomenon that impedes social justice at the site of blame, and which operates at a paradigmatic level alongside and through the proportionality problem. For, retributivism (which we have established is a requirement of a feasible UPD) is often conflated in popular and scholarly understanding with the notion of punitiveness, a concept and practice which causes unjustifiable harm, and so undermines the social justice ambitions of the RPA. As such, it is necessary to unpick the relationship between the two concepts to ensure that the UPD will operate to offset the misrecognition of the person subject to blame. To do so, Chapter 4 engages another core tenet of the criminal law, the principle of parsimony, to identify how the present dominant paradigm can lead to misrecognition, and to reinforce the need for recognitive justice to offset conceptual punitiveness at the heart of the criminal law.
Introduction
This chapter explores the second social justice deficit to which the Real Person Approach (RPA) responds, as a means of further justifying the call for a Universal Partial Defence (UPD). Like Chapter 3, it draws on an established criminal law principle (parsimony) to outline in familiar terms how the present meaning of the rational agency paradigm, and the weight afforded to it, contributes to the problem of excessive blame at culpability evaluation, which feeds into a wider punitive context. This chapter is more concerned with present- and future-orientated functions of blame in terms of how it addresses the penal subject, in addition to its greater contribution to securing social cohesion in a way that advances social justice principles. For culpability evaluation is not only about the reconciliation of blame and desert but involves consideration of greater justice requirements of our time and place.Footnote 1 Such requirements involve invocation of the state’s duty to the person through doctrine at the point at which it holds someone criminally responsible. Therefore, this chapter captures the fact that in attributing blame, there is a higher justification for the UPD than the question of proportionality alone suggests; other values must be considered.
The chapter begins with an overview of the principle of parsimony, outlining its significance for the purposes of responsibility attribution, and explaining its role in supporting the RPA. Next, it uses parsimony to name and describe its opposite, punitive excess, as it presents in excuse doctrine through a narrow reading of, and an overreliance on, the rational agency paradigm. This brings us to a core task of the chapter, which is to deploy the RPA in order to reveal the parsimony problem at culpability evaluation as a serious issue for the criminal law as a form of public law, with a duty to protect its people, including those who offend. It does this by conceptualising punitive excess at culpability evaluation as a form of pathogenic vulnerability that reveals a discrete version of misrecognition at this site. Though it may be argued that the form of vulnerability so identified is a necessary side-effect of offending behaviour, or sufficiently isolated so as to have a limited impact, the position of this book is that the form of pathogenic vulnerability identified, nonetheless, reinforces wider patterns of responsibilisation that support broad practices of misrecognition. In response, the recognitive justice feature of the RPA is engaged to consider how we might action the amelioration of the social injustice particular to this site by drawing on recent scholarship that suggests a more modest approach to criminal responsibility attribution. Parsimony has been accused of failing in its task to limit the reach of the criminal law, by not facilitating the successful institutionalisation of constraints on reactive hostile emotions.Footnote 2 This chapter joins calls to revitalise the principle by showing how it can work in advancing social justice in tandem with the RPA. Together with proportionality, the principle of parsimony must be recognised as integral to the duty of the criminal law in securing civil order in a way that advances social justice. Applied to the site of culpability evaluation, as distinct from punishment, the principle calls for the least punitive approach that can be implemented in order to hold the individual to account in a way that advances social justice, as a core duty of the criminal law in this space.
The Principle of Parsimony
Parsimony has a long history in social theory where it is called on to limit state intrusion in the lives of citizens, which may only be justified on the basis of serving a greater social purpose, and doing so by the most frugal means.Footnote 3 In a criminal law context, parsimony tends to feature predominantly in conversations concerning the scope of the criminal law, and in those relating to how much (in terms of both length and severity) it ought to punish. And though the two conversations might overlap, it is important not to conflate issues relating to criminalisation with those of punishment, as each area can raise different questions.Footnote 4 The remainder of this section will touch briefly on each.
Trends in Scholarship
In recent years, the idea of parsimony has featured strongly (whether consciously or otherwise) in response to growing concerns about a propensity towards overcriminalisation across a number of areas,Footnote 5 and a corresponding call for decriminalisation.Footnote 6 Criminalisation is a complex and multifaceted process with many different modalities to which I cannot do justice here.Footnote 7 Rather, what is important to note for now is that the idea of overcriminalisation brings a sense of the criminal law exceeding its legitimate role or function in some way. In criminal law theory, this angle usually arises in discourses around the notion of having too much law, or criminalising categories of behaviour that do not warrant such a response. Moreover, the perspective lends itself to scholarship that highlights a particular range of concerns, such as the state’s ‘problematic reliance on criminal law solutions to social and economic problems’, for instance.Footnote 8 Parsimony, in this context, provides a conceptual bridge between the role of the criminal law and the greater duty of the state in serving its people. This aspect of parsimony is important when we think of it in the context of the RPA.
The principle of parsimony has featured more explicitly in discourses around penal sanction, which bear more directly on questions of responsibility. Punishment, as a form of state intrusion, is seen as justified on the basis of harm done by an individual when that harm is framed as a breach of the social contract, for example. But even within that, parsimony demands that the penal sanction imposed must be restrained in order to maintain its legitimacy, otherwise it amounts to mere cruelty.Footnote 9 This constraint appears indifferent to the overall penal aim,Footnote 10 such that versions of parsimony have been deemed compatible with both retributivism and more consequentialist accounts of punishment.Footnote 11 It has been used in the context of a range of discourses from more moderate calls for reduction in sentencing,Footnote 12 and the use of non-custodial alternatives,Footnote 13 to supporting minimum intervention approaches in youth justice.Footnote 14 It also features in various forms in abolitionist arguments,Footnote 15 and responses to mass incarceration.Footnote 16 Indeed, discourses around the role of parsimony at punishment and sentencing have seen something of a revival in recent times.Footnote 17 Notably, in response to the (arguably, perpetual) penal crisis in England,Footnote 18 Loader has called for a public philosophy of punishment based on moderation, which he understands to consist of a combination of restraint, parsimony, and dignity.Footnote 19 Notwithstanding such developments, less notice is afforded overtly to the role of parsimony in the context of criminal responsibility ascription, though its presence is implicit in some recent discourses relating to the nature and impact of blame and punishment.
Such conversations tend to emerge from attempts to untangle the relationship between moral and legal philosophy and concern the intensity of blaming practices and their real-world impact in terms of fostering aversive attitudes towards those who offend. For instance, Pickard has done considerable work on extending her framework of ‘responsibility without blame’ where the focus is on communicating about damaging behaviour without making in-depth moral assessments of the person.Footnote 20 With Lacey, she brings this approach to the criminal law, arguing that it is both possible and appropriate to separate the practice of holding to account from interpersonal modes of assessing blameworthiness that tend to generate hostile reactions and marginalisation. In so doing, space is created for more instrumentalist objectives of criminal law to co-exist with retributivism.Footnote 21 However, in terms of the practical implication of holding an individual responsible without blame, the authors focus on the post-conviction stage, rather than responsibility ascription more particularly. Similarly, parsimonious sentiment is reflected in the work of Chiao, where he puts forward an argument for responsibility without resentment.Footnote 22 Like Kelly,Footnote 23 he argues that weight ought to be given to other ways to respond to harm beyond blame and punishment. Chiao argues that
responses that stop short of resentment or blame can be grounded on an appreciation that although a person could have chosen differently than she did, doing so would have been unusually difficult for her. Under those circumstances, we can acknowledge her responsibility for the wrong without blaming or condemning her for it.Footnote 24
Together, these works provide support for the position that it is both possible and preferable to respond to culpable wrongdoing in a way that does not encourage hostile reactivity. In this sense, we might see how parsimony, as an inhibitor on the intensity of blame, might work with other responses that are less punitive in terms of impact on the person.Footnote 25
Let’s look more closely at how we might understand the concept of parsimony for present purposes, before exploring its particular significance to culpability evaluation.
The Meaning, Purpose, and Place of Parsimony
Parsimony has an enigmatic quality, and the more cited definitions tend to derive from its use in punishment literature. It is mostly described in the negative and, at a basic level, we might say that it means to act moderately or with restraint.Footnote 26 It develops more teeth when we consider what it targets, whereby, in the context of condemnation, it becomes a tacit acknowledgement of the fact that blame and punishment are harmful. In this sense, parsimony calls for ‘the avoidance of gratuitous harm’.Footnote 27 Its presence speaks to the fact that, as a populace, we should feel uneasy about state punishment, which, without justification, amounts to outright violence inflicted on our fellow members of the community.Footnote 28 This is a simple message, but one from which people tend to disconnect when presented with particular stories and examples of the impact of an incident of offending behaviour on a particular victim.
The principle of parsimony may not appear a particularly successful enterprise when juxtaposed with charges of overcriminalisation, mass imprisonment, and supervision, and various other manifestations of penal crisis. Nevertheless, it remains significant in its symbolic and steadfast stand against oppression, and the fact that it is seen as central to the integrity of the criminal law.Footnote 29 This sentiment is captured in Loader’s account of penal moderation, which indicates that parsimony responds to the inherent reluctance we should feel when condemning people:Footnote 30
Punishment, such feelings remind us, is the organized infliction of pain by the State upon an individual in response to that individual’s criminal wrong-doing. It is an act whose exercise should thereby be restrained – in a double sense. As a matter of law and practice, one must subject penal practices to clear limits and controls, and robust forms of accountability.Footnote 31
Other definitions of parsimony link it to the greater aims of state punishment. For instance, von Hirsch, states that ‘[p]unishments hurt those who must undergo them, and a decent society should seek to keep the purposeful infliction of hurt to a minimum’.Footnote 32 Norval Morris states that parsimony, in the context of punishment, can be characterised by ‘the least restrictive (punitive) sanction necessary to achieve social purposes’.Footnote 33 This definition is echoed by Tonry who, drawing on Bentham, presents a version of justice as parsimony whereby ‘offenders should never be punished more severely than can be justified by appropriate, valid, normative purposes’.Footnote 34 ‘Decent society’, ‘social purposes’, ‘valid, normative purposes’ – such markers tend to tie parsimony to how the state relates to the person subject to responsibility ascription, suggesting that this relationship matters at a deeper level.
Exploring further the role of parsimony in this context, the principle tends to be characterised either as a side-constraint on the greater aims of criminal law, or as a principle essential to those aims. The side-constraint approach sees parsimony play a role, particularly in consequentialist accounts, whereby a lesser punishment is to be preferred unless an objective like crime prevention or deterrence warrants a greater one.Footnote 35 In his republican theory of criminal law, however, Duff argues that parsimony ought to be intrinsic to the criminal law and not just a constraint because its power in that context is weakened by the fact that any greater purpose the law might have in mind will always trump parsimony.Footnote 36 Therefore, for Duff, it is important to understand parsimony as a positive concept in union with the aims of the criminal law (for him, republican aims) which must thereby be inherently moderate.Footnote 37 However, he is pragmatic in this objective, recognising that the realisation of the criminal law he has in mind may be some way off, and acknowledging that, as a result, it is justifiable to also deploy a negative understanding of parsimony, in terms of minimising the harm caused by the criminal law.Footnote 38 He writes:
Even a decent system of criminal law will be coercive, burdensome and (since it is human) liable to be oppressive; its ambitions must be modest, its operations constrained by a recognition of the harm it can do and of the costs (material and moral) it incurs.Footnote 39
Though it may be difficult to pin down the distinct contribution parsimony can make, a positive role is suggested by Lippke in the context of sentencing, when he frames it as a ‘second-order principle’, which acts as
a reminder, of sorts, that we consistently underestimate the costs and harms flowing from legal punishment, while simultaneously overestimating its benefits. Hence, we should look for ways to reduce the length or harshness of criminal sanctions.Footnote 40
In accordance with Duff and Lippke, then, the role of parsimony envisaged to align with the RPA is one that acts as a pervasive attitude and practice of moderation that is internal to the criminal law, and serves as a constant reminder that condemnation must be limited because of its negative impact (more on this later).Footnote 41 Connecting doctrine to the wider aims of criminal law (as outlined in Chapter 1) means that it is important to remember that the criminal law serves its people (including those who offend) in the first instance, as citizens.Footnote 42 As such, how it addresses those individuals (including, I would argue, non-citizens)Footnote 43 through doctrine at the point of blame is not incidental but fundamental to its aims. Moreover, placing parsimony as central to the aims of the criminal law has the potential to make it more potent and to inspire change (depending on the nature of those aims). Loader recognises this in his account of penal moderation, when he says ‘its exercise calls for the cultivation of an attitude of care and caution with respect to whether, why and whom, and how and how much, societies punish’.Footnote 44
Together, these insights suggest that norms inform the measure of parsimony to be applied in the context of punishment. I will argue that the same measure ought to apply in the attribution of responsibility, such that the measure of parsimony here lies in its inherent connection to social norms that are central to informing how the state blames its people. Such norms are a flexible construct,Footnote 45 and Loader might say that practices of blame, like punishment, are a ‘social and political choice’.Footnote 46 Therefore, for the purposes of this book, it is argued that those norms ought to be informed by social justice in the form of recognition, and that blaming practices (and doctrine, in particular) must consequently have both retributive and recognitive qualities that aim to advance social justice at this discrete site. To support this endeavour, a parsimonious approach to blame can work towards naming pathogenic vulnerability and offsetting misrecognition. However, let’s first clarify the role of parsimony in the context of the RPA as applied to culpability evaluation.
Parsimony, Culpability Evaluation, and the RPA
Though parsimony is a well-established principle, it tends to be overshadowed by discussions of proportionality when it comes to questions of responsibility, as distinct from blame.Footnote 47 Yet there is a strong argument which recognises that parsimony applies to responsibility doctrine too, as an apparatus of the state that contributes to the condemnation of an individual. As Lippke notes, parsimony is also a ‘powerful conceptual tool, because it organizes and helps us make sense of the deep unease many have with existing institutions of legal punishment’,Footnote 48 and, I would argue, responsibility attribution. Excuses, of course, can be framed as a constraint on exigencies of the criminal law when we say that, in order to be held criminally liable, an individual should not have an excuse defence, such as insanity or duress. Our deep unease might stem from the limited range of excuses that are available, and a related representation of personhood that begets misrecognition (more on this point later).
As such, parsimony fulfils two core functions in the context of the RPA. First, it is deployed in the next section to name and to explain the nature of the excess at the heart of excuse doctrine (though certainly not exclusive to it). In doing so, it unearths the depth and intensity of the state blaming apparatus with a view to reducing its impact through the UPD. By connecting this discourse to the greater aims of the criminal law, it is, secondly, used to emphasise the sociopolitical nature of the excess identified, and the fact that how we hold people responsible both reflects and reinforces wider patterns of responsibilisation. So, penal excess is not just deep and intense here, taking a relational lens to this site; it is also endemic in the law and justice system more broadly.
For the purposes of the RPA, parsimony is understood as negative in the sense that it asks the state to be mindful of offsetting harm, but it is positive in the sense that it can contribute in an important way to the advancement of social justice. By being parsimonious or moderate in the extent to which we attribute blame to people, we recognise them as vulnerable, not just in an inherent or broader situational sense, but in a pathogenic sense: they are vulnerable in their position as subjects of the criminal law. For, the criminal law, by associating their action with their moral worth, is exposing those who offend to harm in terms of misrecognising their personhood.
The Parsimony Problem at Culpability Evaluation
Penal excess, as the ‘antonym’ of moderation, is the target of the principle of parsimony at culpability evaluation, and the nature of that excess has a more qualitative than quantitative feel.Footnote 49 Culpability evaluation suffers from a parsimony problem because excuse doctrine is overly reliant on the rational agency paradigm. The hegemony of rational agency at this site makes a discrete conceptual contribution to penal excess by encouraging an intense and bounded scrutiny of the individual’s moral worth without recourse to their situation as subjects of state intervention. The next section will show how this form of punitiveness can be framed as misrecognition under the RPA, but for now it is important to clarify the meaning of punitiveness, and to explain how the dominance of rational agency at culpability evaluation contributes to it.
Understanding Punitiveness
A strong narrative has taken root that tends to assume that punitiveness or a ‘new penology’ has surged in recent years, but it is important to recognise, as Matthews does, that there is nothing novel in the idea of punitiveness itself: ‘[s]ince punitive and emotive sanctions in their various forms are an enduring feature of penal policy’.Footnote 50 Rather, the novelty comes from how the concept can be used as a tool to explain and theorise criminal justice developments in our time and place.Footnote 51 The meaning afforded to punitiveness is often dictated by its use, however. For instance, it might be employed to analyse methods of state control,Footnote 52 or to capture a particular public sentiment.Footnote 53 It is a phenomenon that scholars have attempted to measure in various contexts,Footnote 54 and, to a lesser extent (though this is changing), conceptualise.Footnote 55 Though it might be described as a ‘fraught concept’,Footnote 56 broadly speaking, punitiveness can be used to encapsulate a general tendency towards harshness and hostility in how the state responds to individuals who offend.Footnote 57
For present purposes, our ‘punitive tool’ must operate in the context of the principles underpinning responsibility attribution, and in terms of the relationship between the state and the person at the point of blame. In capturing the idea of punitiveness for this purpose, it is first important to distance the analysis from narratives that seek to use the term as a heuristic device to imply a retributive approach to criminal justice, usually in contrast to a broadly rehabilitative one.Footnote 58 Punitiveness tends to be associated with stronger flavours of retributivism that are more closely aligned with vengeful reactivity.Footnote 59 However, it would be misplaced to equate punitiveness with penal goals. For, as discussed previously, more moderate accounts of retributivism can support parsimony,Footnote 60 just as consequentialist accounts can promote harshness where aims like deterrence or incapacitation are left unchecked. Maruna and King explain the association between punitiveness and retributivism by noting that often the goals themselves are a means of rationalising reactive attitudes to crime post hoc.Footnote 61 As explained in Chapter 3, however, a moderate account of retributivism can be identified and need not be punitive in nature (in terms of acting as a conduit for hostile reactions) when supplemented by recognitive justice.
A Punitiveness for Paradigms
Though punitiveness tends to be confined to discourses on crime control and punishment,Footnote 62 the development of the concept at a paradigmatic level is receiving greater attention in recent times. For present purposes, an understanding of punitiveness is needed that captures the complexity of its application, as an attitudinal and broader sociocultural practice,Footnote 63 at the site of culpability evaluation. In this context, Carvalho et al.’s work on the notion of punitive logics is particularly helpful. These authors capture the breadth and depth of punitiveness by acknowledging its significance as a more systematic and contextual ‘phenomenological complex’ which they say can appear as ‘a central feature of a range of intersecting experiences and practices, operating at a personal, symbolic, political and structural level’.Footnote 64 For them, this understanding of punitiveness can operate both within and beyond the criminal justice system. And for present purposes, this understanding is flexible enough to allow for its adaptation to discrete sites, like culpability evaluation, while providing criteria to help connect punitiveness here, to a wider cultural phenomenon, as discussed later through the notion of responsibilisation. Their approach brings value in the sense that it captures a pathological quality to blame and punishment that overshadows wider justice concerns which connects with our discussion to follow in the context of the RPA. In this sense, elsewhere, Carvalho and Chamberlen write of punitive justice:
[E]pisodic violations of justice overwhelmingly capture our attention, so that the need to have them addressed in a decisive and robust manner takes over, and consequentially detracts us from enquiring about the deeper roots of these issues and from engaging with other, more holistic and persistent forms of justice. Justice therefore becomes trapped in a pathologic cycle: we feel pain, we seek to put an end to it, and we do so by inflicting pain upon others who we identify as the source of our suffering.Footnote 65
According to Carvalho et al., punitiveness can inhabit social attitudes and institutional arrangements and conditions to the degree that they:
(1) speak to and encourage individuals to identify themselves and behave as punitive subjects; (2) reinforce a symbolic scapegoating apparatus; (3) institutionalize hostile practices and deploy them as part of a strategy of governance; and (4) reflect and contribute to the imposition or maintenance of structures of oppression.Footnote 66
Here, we might highlight, in particular, the symbolic function of punitiveness at the site of blame, and how this results in the scapegoating of individuals which impacts their real lives. To further draw out how this can be identified in doctrine, we can look to Cohen’s understanding of punitiveness.Footnote 67 For Cohen, punitiveness is encapsulated by the presence of the following features: ‘coercion, formalism, moralism and the infliction of pain on individual legal subjects by a third party’.Footnote 68 This definition is particularly useful, because it is timeless in the sense that it is not related to a particular trend or goal,Footnote 69 and it is also couched in terms that can be applied at a paradigmatic level to rational agency and, in turn, to the concepts and principles inherent in doctrines of responsibility. I want to focus in particular on the ideas of formalism and moralism, in what follows, as coercion is inherent in criminal law and requires little explanation in this context, and the infliction of pain by the state (as third party) on the individual legal subject is uncontroversial.Footnote 70 Formalism and moralism are more subtle, yet inherent in the rational agency paradigm, and work together at culpability evaluation to scapegoat the individual.
Formalism, Moral Essentialism, and Punitiveness at Culpability EvaluationFootnote 71
We have seen in Chapter 3 how the dominant version of the rational agency paradigm is underpinned by a dispositional bias that distorts the desert calculus. This bias, or individualist frame, at the site of culpability evaluation is often justified by an appeal to formalism.Footnote 72 The defence goes that it is acceptable to shift more particularised or situational factors, and consequential considerations, from the guilt finding (responsibility ascription) phase to the punishment or sentencing phase. This arrangement is justified because formalism at guilt-finding must rely on rational agency, as the law’s core conceptual structure propping up the doctrine of the general part,Footnote 73 in order to provide a consistent and logical explanation for how people are deemed culpable.Footnote 74 In this way, the internal evaluation mechanism of the responsibility doctrine appears impartial, objective, and, what Norrie terms, a ‘morality of form’ embodied in the law’s person, which is construed as ‘agency and mental states of a universally constituted, abstractly responsible, individual’.Footnote 75 This vision of personhood (outlined more fully in Chapter 2) informs blame ascription because legal guilt relies on the person as ‘a choosing being, regardless of the context of choices’.Footnote 76 Moreover, as Norrie states, ‘the moral content of choice is assumed to be non-controversial, a secure corpus of evil acts linked to a contestable range of wrongs at the margin’.Footnote 77
And while we might acknowledge that, at least in theory, the dominant rational agency account can bring a certain internally coherent and ‘content-neutral’ evaluation,Footnote 78 this logic also lends itself to a form of punitiveness through moral essentialism. In excluding the social and (wider) moral context of the accused, doctrine simply creates a unidimensional (or pathological) moral assessment. A thorough presentation of the nuances of moral essentialism is beyond the scope of this discussion;Footnote 79 however, what is at stake here, in basic terms, is the reduction of a person to their crime, and their depiction as ‘bad’ in the face of the ‘good’ non-offending members of society. This dichotomy is discussed later, but for now we might put essentialism in the following psychological terms: ‘the notion that observable characteristics reflect internal, biological, unchanging “essences”’.Footnote 80 Essentialism matters for present purposes because studies of its application to criminal justice responses suggest that essentialist assessment, as a cognitive tendency, can have the effect of increasing punitive responses.Footnote 81
To demonstrate where moral essentialism emerges in the present dominant account of personhood (outlined in Chapter 2), we can focus on one of the more accepted approaches to establishing rational agency for the purposes of criminal responsibility, the ‘reasons-responsiveness’ thesis.Footnote 82 This thesis stems from moral philosophy and has been endorsed in a criminal law context by important scholars.Footnote 83 It holds that an individual is considered responsible for crime because they are deemed to have the capacity to respond to their moral reasons for behaving in a particular way, but in the instance in question, they respond wrongly.Footnote 84 The reasons themselves are deemed important because they speak to the person’s motive for acting in the way that they did, thus linking reasons-responsiveness with a ‘quality of will’ thesis,Footnote 85 whereby, in Antill’s words: ‘It is the agent’s will, rather than their actions, which, according to the reasons-responsiveness theory, is the ultimate object of assessment, or grounds for our blame or resentment, of the culpable agent’.Footnote 86
As such, the relevant inquiry for the purposes of criminal responsibility becomes the extent to which a person’s actions suggest a moral shortfall in their failing to appreciate why the behaviour in question was wrongful.Footnote 87 In other words, their bad choices reveal something negative about them as a person, about their character. As Husak puts it, the agent’s ‘deliberation is deficient in the way that supports blameworthiness most clearly when agents respond incorrectly to the balance of moral reasons according to their own lights’.Footnote 88 Thus, we can see how formalism, rather than being neutral, glosses over a distinct moral tone whereby it is suggesting that the person ought to have known better than to act as they did and so is deserving of blame in response.Footnote 89 To say that someone ought to have known better is to assume from their behaviour a negative attitude and one that, in Husak’s words, ‘reveals something bad about [them] as a person’.Footnote 90 The punitive nature of the reasons-responsiveness thesis, then, lies in the depth and intensity of the moral assessment at play, which makes it more likely that the person subject to it will be considered beyond redemption.Footnote 91 In other words, it misses the point that the formation of ‘good character’ itself is a context-specific enterprise. Character is not simply the outcome of a process of moral development; rather, it amounts to an interactionist phenomenon – it is dependent not just on a stable disposition, but on more variable states that are themselves situated.Footnote 92
The presence of this apparent form of moral essentialism has been reinforced by Lacey’s observations regarding the resurgence and significance of character in assessments of criminal responsibility.Footnote 93 She writes:
And at the very heart of the doctrinal marker of criminal law’s modern formalization of mens rea, subjective mens rea concepts such as intention or knowledge are susceptible of interpretation as bearing on character as much as – or rather than – conduct.Footnote 94
In the context of excuse, moral essentialism is reinforced by the narrow construct and interpretation of doctrine by disallowing consideration of wider factors that diffuse the individualistic lens, allowing a skewed vision of the person to persist. Blame is intensified because there is little recourse to external moral concerns that can ameliorate harsh responses to someone who offends. Without it, the individual carries the blame and is portrayed as inherently morally corrupt. This can be reinforced by a tendency for the weight given to the wrongdoing (particularly when there is an identifiable victim) to outweigh any focus given to the culpability of the accused. Such an inclination is reminiscent of Paul Robinson’s notion of ‘vengeful desert’ which focuses on ‘the offense harm and victim suffering and sets the deserved punishment to match that of victim’s harm and suffering’.Footnote 95 It is also bolstered by the fact that, as Pettit and Knobe have found, the more morally wrongful people perceive an action to be, the more they presume intention in the perpetrator,Footnote 96 thus intensifying the moral gaze on the subject.
Though the moralistic issue underpinning the rational agency paradigm is not new in the context of criminal responsibility, it is arguable that, given what we now know about the damage moral essentialism can cause to individuals,Footnote 97 and given the propensity of this approach in wider criminal justice rhetoric and policy,Footnote 98 there is a more pressing need to counteract the harm arising from this institutionalised framework. Characterising doctrine built on a narrow account of rational agency as conceptual punitiveness and, in turn, as a form of social injustice makes it more urgent for the state to react as part of its duty to protect its people.
Using the RPA to Reframe and Respond to Social Injustice
To recap, the previous section suggests that parsimony at culpability evaluation is undermined owing to the depth and intensity of moral judgement taking place which is facilitated by a narrow excuse doctrine that relies predominantly on a restricted rational agency paradigm, to the exclusion of other conditions and circumstances that may be relevant to the assessment of criminal culpability.
This section, therefore, deploys the RPA to characterise the parsimony problem at culpability evaluation (punitive excess) as a social justice one, given the role of the criminal law in relation to those who offend, and therefore amplifying the call for the state to respond. It begins by exploring the idea of punitive excess at culpability evaluation as a form of pathogenic vulnerability, before diagnosing misrecognition in a doctrinal context at this site. Finally, it considers how the state ought to attribute responsibility for crime in a way that promotes recognitive justice.
Reframing Punitive Excess at Culpability Evaluation as Pathogenic Vulnerability
While Chapter 3 discussed how disproportional desert may be framed as a form of situational vulnerability, this section uses a subset of that concept, pathogenic vulnerability, to capture the nature and extent of the vulnerability that emerges as a result of the legal intervention taking place at culpability evaluation, and the contribution from doctrine, in particular. As explained in Chapter 2, pathogenic vulnerability arises when modalities of state power, such as legal instruments, which may be designed with a function of maintaining order in mind, actually have the perverse effect of cultivating new vulnerabilities, or intensifying existing ones, thereby contributing to experiences of oppression, disrespect, harm, or injustice.
The claim here is that the conceptual punitiveness evident at culpability evaluation contributes to injustice because the attitude that is cultivated by narrow excuse doctrine reinforces broader punitive responses that marginalise people who offend and may be framed as social injustice through a form of doctrinal misrecognition. Principle resting on a narrow conception of the rational agency paradigm is therefore pathogenic in the sense that rather than promote civil order through social cohesion, it serves to undermine it by creating division through stigmatising practices that scapegoat and shame the person who offends.
Scapegoating, Stigma, and Shame
State blame is justified on the basis that the state acts to respect the autonomy of the individual (as explored in Chapter 3). However, it is arguable that rather than eliciting respect for the person at this point, it is, in fact, stigmatising them by undermining their standing as equal members of the moral community (leading to misrecognition). Thus, the pathogenic vulnerability is inherent in their position as subjects of the criminal law, whereby they are vulnerable in their containment, in being ‘held’ responsible. Understanding the form that pathogenic vulnerability takes at the site of responsibility doctrine is aided by considering conceptual punitiveness in terms of a ‘scapegoating ritual’, used to galvanise the community in times of insecurity.Footnote 99 For, through targeting punitive responses at those who offend, we can release our fear in the direction of one, identifiable target and thus attain a form of hostile solidarity in opposition. For Carvalho et al., the scapegoating ritual involves four factors that are based on an underlying notion of a perceived threat of crime. The factors might be summarised as involving an ideal community with which it is assumed people wish to be reintegrated, an ideal innocent and vulnerable victim(s) (including society) who have been harmed by the threat that needs to be removed as a result, moral judgement which expresses hostile reaction, and ‘the scapegoat’, in the form of ‘the punishable subject infused with all the “bad” and excluded from the community of value’.Footnote 100 Though this ritual may be directed towards a more rehabilitative outcome, its pathogenic or, in the authors’ terms, ‘neurotic’ or ‘split’ form creates a division between those in judgment and the judged:
Punitiveness thus inherently involves symbolically setting and maintaining boundaries between good and bad images of subjectivity and society, to manage and negate insecurity and ambivalence. This is brought about by the dynamics of identification and estrangement, which define notions of belonging to and exclusion from the community of value. / This process of scapegoating … lies at the heart of the experience of being punitive.Footnote 101
Though this division may provide comfort to the community that the crime problem is (and can be) addressed, such comfort is misplaced owing to the fact that isolating and excluding people has the ultimate effect of undermining social cohesion, in a type of downward spiral. For, as Feldman outlines, practices of marginalisation serve only to support criminogenic conditions, and not assuage them.Footnote 102
Scapegoating is harmful to real people because in being held out and evaluated in this way they are more vulnerable to feelings of shame and experiences of stigmatisation in the community.Footnote 103 From the person’s point of view, studies suggest that an individual’s perceived stigma prior to rejoining the community is present and can have negative impacts on the person’s outcomes post-release, given the complex relationship between stigma and adjustment.Footnote 104 Those who internalise stigma as shame are more likely to experience negative outcomes because being subject to and identifying with a label of bad character reinforces hostile reactions in members of the community.Footnote 105
Picking up from the conceptual punitiveness that emerges from the formalism and moral essentialism at play as a result of the dominance of the rational agency paradigm, we can more clearly understand how the depiction of the person as morally corrupt can contribute to real-world impact on individuals held criminally responsible. In evaluating culpability, the state is conveying an attitude through its narrow individualistic lens that generates hostile attitudes,Footnote 106 which lead to exclusion and marginalisation. For, as Brink and Nelkin point out, the core of blame is ‘an aversive attitude toward the target that is predicated on the belief or judgement that the target is blameworthy’.Footnote 107 In a Strawsonian sense, then, the target is the quality of will.Footnote 108 When this attitude is left untempered by a fulsome account of the moral picture, harm occurs through exclusion and marginalisation. A hardened stance forms whereby in being held responsible, a person’s blameworthiness is held against them,Footnote 109 with material consequences. As Lacey and Pickard note in their account of affective blame, such a process can ‘not only destroy the possibility of treating the offender with any concern, respect, or compassion, but also undermine any motivation we might otherwise harbour to work towards reform and reintegration’.Footnote 110 Moreover, the potency of blaming reactions tends to distract from the extensive societal harm resulting from punitive excess, such as occasioning civil disengagement, promoting inequality, and undermining welfare efforts.Footnote 111
A Culture of Responsibilisation
Before exploring how pathogenic vulnerability at the site of blame leads to a form of doctrinal misrecognition, it is important to stress that though we are focusing on a discrete site for the purposes of this book, the pathogenic vulnerability at culpability evaluation is enmeshed in a wider cultural paradigm of responsibilisation, which is significant because it shows how the site both reinforces this wider trend and is conversely enabled by it. It also shows how endemic it is and how consequently it is so difficult to challenge wholesale.
The view of the person as rational agent is not exclusive of course to culpability evaluation. It was pointed out in Chapters 1 and 2 that it aligns with a liberal understanding of the autonomous agent. When thinking about the duty of the state here, then, it is useful to consider and connect rational agency at culpability evaluation to the wider culture of responsibilisation, as a political manifestation of the rational agency paradigm. In so doing, we can expand the frame of dispositional bias (attributing responsibility to the individual to the exclusion of circumstance) discussed in Chapter 3 to reveal its impact at a macro level.
Responsibilisation is commonly understood as a modus of both neoliberalism and advanced liberalism that enables a transfer of responsibility from state to person.Footnote 112 Though there is not a full consensus on its meaning in the literature,Footnote 113 and we are arguably in a post-neoliberal state,Footnote 114 responsibilisation remains a useful concept to capture the power dynamic between the person and the state in the present era. Responsibilisation, as embedded in neoliberalism, exalts the idea of the individual as self-constituted, self-governing, and detached from interests that relate to broader social forces and structures.Footnote 115 In this way, state governance (risk management, protection) is exercised remotely, with the onus on the individual agent to meet their own needs, as a responsible, resilient, or ‘enterprising self’, rather than relying on state support.Footnote 116 This particular view of the person tends to flourish in conditions where the state has an interest in cultivating a culture of individual freedom and autonomy amongst its citizenry.Footnote 117
References to the responsible subject and discourses on responsibilisation, more broadly, emerged strongly in the governmentality literature of the mid-1990s,Footnote 118 largely in response to the rise of neoliberal political norms and advanced liberal strategies, respectively.Footnote 119 The 2008 global financial crisis brought greater attention to this style of governance, which was amplified by the increased retraction of welfarist policies due to cuts in public services spending.Footnote 120 Cultures of responsibilisation are now prevalent across jurisdictions,Footnote 121 and throughout diverse sectors, including healthcare,Footnote 122 education,Footnote 123 social work,Footnote 124 climate and environment,Footnote 125 and criminal justice agencies, including youth justice,Footnote 126 policing,Footnote 127 and probation.Footnote 128
Responsibilisation, as a technique of neoliberalism, brought with it a promise of freedom and flourishing. As Liebenberg et al. write:
A gradual turn towards a neo-liberal theory for the public sector was supposed to mean a greater emphasis on priorities and principles of the economic market that could mutually benefit social, cultural, and political practices and policies as well as contribute to the advancement of individual well-being and the greater social good.Footnote 129
However, there is strong evidence to suggest that neoliberal social policy underpinned by responsibilisation strategies and techniques plays a key role in the generation and maintenance of conditions of deprivation.Footnote 130 Feldman charts three ways in which neoliberalist policy has impacted people experiencing poverty: through the restructuring of the welfare state, growing precarity and inequality, and the fabrication of entrepreneurial subjectivity.Footnote 131 In short, the decline of welfarism from the late 1970s was informed by a belief that the provision of welfare leads to poverty because people are less motivated to work if they receive help from the state.Footnote 132 Thus, there was a shift from welfarism towards an emphasis on ‘effective market participation’ by the poor in order to increase independence and well-being.Footnote 133 Rather than meeting these aims, however, the responsibilisation of the person at work here left those already in need in a more vulnerable position when their ability to access the labour market is already impeded.Footnote 134 Even those who do access the labour market often face precarious and unequal situations in what has been characterised as a ‘gig’ economy.Footnote 135 Inequality and precarity fuel a host of issues that decrease well-being, including presenting as a risk factor for adverse childhood experiences (ACEs). More people in deprived areas have ACEs, and the high proportion of those in prison with ACEs is well documented.Footnote 136
So while we can see that responsibilisation policies exacerbate, if not cultivate, economic and social deprivation, it is in the state response to these conditions that the symbiotic nature of social and criminal justice mechanisms comes into play. There is a strong line of literature that criticises the impact of responsibilisation as a means of rationalising state power. Notably, David Garland identified the phenomenon of responsibilisation as a central strategy of neoliberal crime control at the institutional level.Footnote 137 Similarly, Lemke (drawing on Foucault) explains how this feature of governmentality tends to problematise situations with a view to generating its own solutions. He explains:
Government defines a discursive field in which exercising power is ‘rationalized’. This occurs, among other things, by the delineation of concepts, the specification of objects and borders, the provision of arguments and justifications, etc. In this manner, government enables a problem to be addressed and offers certain strategies for solving/handling the problem. On the other hand, it also structures specific forms of intervention. For a political rationality is not pure, neutral knowledge which simply ‘re-presents’ the governing reality; instead, it itself constitutes the intellectual processing of the reality which political technologies can then tackle. This is understood to include agencies, procedures, institutions, legal forms, etc., that are intended to enable us to govern the objects and subjects of a political rationality.Footnote 138
Applying Lemke’s framework to the conversation so far, we have discussed how neoliberalist strategies have cultivated conditions of social and economic deprivation. Environments of economic and social deprivation are criminogenic,Footnote 139 with a strong association between high crime rates and income inequality.Footnote 140 Through a rationalisation framework, then, the state responsibilises the individual by characterising the problem of crime as a personal issue of non-compliance through bad choices. Indeed, Naffine highlights the dependency on a rational framework as a means of legitimising criminal law and justice itself:
The very legitimacy of criminal justice rests on the principle that it is fair to punish us for our wrongs to others because they are our own deliberate choices, the product of our will: we know what we are doing; we supposedly intend our actions; we can be blamed for them. The institutions of the criminal law could not practically function without this presupposition of responsibility and reason.Footnote 141
The significance of this ‘processing’ exercise is that the criminal law is engaged in, as Farmer puts it, ‘giving institutional form to the underlying moral structure of responsibility practices’ whereby ‘the community or civic enterprise can respond to the commission of properly recognized public wrongs’.Footnote 142 Farmer notes the recent phenomenon of the move from social responsibility to the law being involved with ‘identifying the conditions of individual punishability’.Footnote 143 Thus, the focus is on problematising the person who offends, over and above factors that increase the propensity for criminal behaviour, such as scarcity.Footnote 144 With the problem of crime clearly pinned to the person, the issue is tackled by processing the person through the criminal justice system as a rational, blameworthy agent. This phenomenon advances punitivism because it intensifies the blaming lens, reaffirming strategies of scapegoating and marginalisation and exacerbating the social problems of those involved with the criminal justice system.
Diagnosing Misrecognition
So far, we have shown that rational agency underpinning excuse doctrine is a form of conceptual punitiveness that can be understood as pathogenic vulnerability due to the fact that mechanisms like individualism, formalism, and moralism work together to craft an essentialist account of the person who offends as inherently morally corrupt. The person is scapegoated and stigmatised, leading to division and exclusion from the moral community. We have seen how this practice is part of a wider state mechanism whereby criminal justice interventions exacerbate rather than ameliorate the vulnerability of those who are the subjects of the criminal law. The next step is to acknowledge the stigma and exclusion so identified as a category of misrecognition, and to frame the particular contribution of doctrine, as underpinned by rational agency, as a form of doctrinal misrecognition.
As discussed in Chapter 2, the idea of vulnerable agency captures the fact that our social and moral contexts and related power dynamics are integral to the formation of an authentic agentic account. Pathogenic vulnerability, deriving from a maladapted power dynamic between the state and the person at the site of blame, generates shame, stigma, isolation, and exclusion. These experiences amount to a form of misrecognition because they undermine the autonomy of those who offend,Footnote 145 through the experience of loss of standing in the moral community. Nancy Fraser describes this phenomenon as follows:
[P]eople can also be prevented from interacting on terms of parity by institutionalized hierarchies of cultural value that deny them the requisite standing; in that case, they suffer from status inequality or misrecognition.Footnote 146
The idea of misrecognition has been applied in the context of criminal justice dynamics to capture the unique contribution that this sphere makes to the process of undermining the standing of those who offend, particularly at the punishment stage.Footnote 147 For instance, McNeill has written about how the experience or ‘pains’ of community supervision is not alone about ensuring compliance, but can also be captured by an experience of personhood being ‘distorted and degraded’.Footnote 148 This understanding joins a growing discourse in penal subjectivity that seeks to extend what might be perceived as the pains of punishment in its various forms,Footnote 149 to include a sense of being ‘unseen’ and ‘misunderstood’,Footnote 150 as well as being considered incapable of being a responsible citizen.Footnote 151 Crewe and Ievins also capture a sense of misrecognition that goes beyond mere lack of recognition, and focuses on how people can be construed in a way that they don’t recognise as themselves, and are responded to accordingly. They write: ‘They are “seen” and addressed in a manner that, by overlooking their true self, makes them feel all the less seen and supported’.Footnote 152
Doctrinal Misrecognition
In thinking about the role of doctrine in contributing to misrecognition, a key point to acknowledge is that what is happening at culpability evaluation is not simply the assessment of accountability for past action. Through the mechanisms of a narrow rational agency paradigm, and the weight afforded to it, the person is being ‘distorted and degraded’, not alone symbolically, but in a way that contributes to the material pains outlined above.Footnote 153 Distortion of personhood takes place when the individual is depicted as inherently morally corrupt (moral essentialism) through a false perception of objective judgment (formalism), which is left unchecked at culpability evaluation, owing to the narrow scope and application of excuse doctrine, that ultimately fails to mitigate the punitive intensity of this particular form of state intervention. The real individual is depicted not as they perceive themselves to be, but as a rational agentic ideal that is far from an authentic representation of their personhood.
Porro says that criminal blame (as distinct from moral blame) means that ‘the state has a unique influence on the standing of citizens’. He writes, ‘[f]irstly, the state can be criticised because of the attitudes expressed through its actions and the message that its policies convey because these attitudes can undermine citizens’ standing’.Footnote 154 At culpability evaluation, the criminal law claims to recognise the autonomy and agency of the individual. However, rather than encourage agency in any real sense, the form of misrecognition at play here undermines any sense that the individual has something to offer the moral community as one of its legitimate members. It weakens social (re)integration efforts in real life through the reinforcement of hostile responses that inhibit positive transformation. The individual’s status equality is downgraded through the process of scapegoating highlighted earlier, leading to conceptual stigmatisation and exclusion. The self-propelling nature of this form of agency loss is captured by Anderson and Honneth:
[P]ractices and institutions that express attitudes of denigration and humiliation … [t]hreaten individuals’ own self-esteem by making it much harder (and, in limit cases, even impossible) to think of oneself as worthwhile. The resulting feelings of shame and worthlessness threaten one’s sense that there is a point to one’s undertakings. And without that sense of one’s aspirations being worth pursuing, one’s agency is hampered.Footnote 155
The authors go on to point out that even if someone were to work at retaining a sense of self-worth in the face of these obstacles, from the perspective of justice, we must ask ourselves, is this a fair burden to carry?Footnote 156
This diagnosis of misrecognition therefore holds that the current approach to state blame amounts to conceptual punitiveness that not only contributes to material suffering but also hampers autonomy, ultimately undermining the criminal law as a liberal enterprise.
A Recognitive Justice Response
We have seen how neoliberalism generates criminogenic conditions and then uses penal apparatus (including criminal law) to legitimise its control practices on the marginalised. The legitimacy of this approach rests on the concept of personal responsibility which aligns with the dominant version of the rational agency paradigm at the heart of state blame. We have discussed how this practice contributes to the creation and exacerbation of pathogenic vulnerability leading to misrecognition. These features ground a duty to recognise and respond to harm or injustice created as a result of particular interventions, and to work towards ameliorating them and, at the very least, not exacerbating them. This point is echoed by Ristroph in her call for criminal responsibility to be recognised as a matter of ‘public and collective agency’:
If its penal policies caused significant harm to individuals and communities, a responsible polity would not dismiss such harms as collateral consequences to justified violence. It would seek to address those harms, to mitigate them, perhaps to compensate for them. Such scrutiny and remedial action would be difficult, but that is what it means to take responsibility.Footnote 157
As outlined in Chapter 2, recognitive justice demands from the state a response to vulnerabilities experienced by those who offend with a view to advancing social justice and democratic equality. Chapter 3 has already recognised the potential role of excuse doctrine in offsetting situational and inherent vulnerabilities. Here, we acknowledge the state’s duty to attenuate pathogenic vulnerabilities that emerge from doctrinal misrecognition outlined earlier. The nature of recognition in this context is political and serves a largely symbolic function that communicates to those who offend and to the community that the person is a full member of the moral community, notwithstanding their offending behaviour.
To offset conceptual distortion and degradation, and to promote a respect for the full personhood of the individual, the UPD can be deployed to move beyond the narrow confines of the dominant approach to personhood underpinning criminal responsibility doctrine, and to acknowledge that wider moral and social contexts matter to assessments of blame in a liberal democracy that takes seriously its duty to advance social justice.Footnote 158 While the form of recognition in Chapter 3 addresses what brought the person to where they are and is more backward looking in considering proportionate responses to wrongdoing, the nature of the recognition here is both present and future-orientated. It ought to address and respond to the position of the person at the moment of blame, as a subject of the criminal law (and the particular vulnerability that position elicits). And it ought to do so with an eye to the future, by promoting their autonomy in a way that acknowledges, and leaves open, the possibility for change.
Present-Orientated Recognition
Acknowledging the pathogenic vulnerability of penal subjecthood at the point of blame can be facilitated, albeit in a modest way, through excuse doctrine and, particularly, by the introduction of the UPD. By supplementing the rational agency paradigm with a fuller account of personhood, the criminal law is acknowledging the might of its position and the impact of its presence in the lives of those before it, and their loved ones. Expanding the breadth and depth of excuse doctrine communicates this message and at least symbolically (though arguably with material effect) intimates that the state regrets having to hold the individual wrongdoer responsible and will ameliorate the impact of an assessment of full moral worth by allowing greater consideration of mitigating factors in order for the judge and jury to make a normative assessment in relation to the person’s behaviour. In this way, the UPD has the potential to shift the dispositional profile of blame towards a more situational one.
This position is supported by psychological findings that highlight the important role excuse-making has to play in offsetting day-to-day essentialist blaming practices. Indeed, as Snyder and Higgins have found, making excuses in everyday life allows causal attributions for actions to become less critical to an individual’s sense of self.Footnote 159 Therefore, attributions of responsibility that facilitate a situationist frame, a wider remit to consider explanations for actions beyond the disposition of the person, supports a way of blaming that is less essentialist. It prevents the offending behaviour becoming the defining feature of the person.Footnote 160 This outcome matters in its own right in terms of respecting the inherent dignity of the person,Footnote 161 and for allowing us to imagine blameworthiness as terminable,Footnote 162 and therefore limiting its reach into the future life of the person. This sentiment is captured by Fricker (which may be applied in a criminal law sense) when she says:
[B]lame should be appropriately contained in its proper remit, both temporally and in terms of the relationship(s) it affects. This means that blame’s expression should not be allowed to go on too long, and should not be allowed to migrate into regions of the relationship where it does not belong, or indeed to wantonly damage other relationships into the bargain. Blame should be allowed neither to fester nor to spread. If it does, it will have degenerated into ressentiment – which may express itself as a vice of excess in respect of intensity, duration, or social extent.Footnote 163
Future-Orientated Recognition
Acknowledging excuses matters for future-orientated reasons because it reinforces the development of individual autonomy. There is evidence to support this position from criminological literature on the process of ‘neutralisation’, which can be understood to endorse the individual in taking responsibility for actions (in contrast to being held responsible). The idea of neutralisation was first employed to explain how people make excuses for their behaviour as a means of justifying wrongdoing.Footnote 164 However, more recent studies suggest that it is a normal response for people to seek to explain the reasons for negative behaviour, which has the positive outcome of encouraging accountability for actions, reducing stigma, and encouraging pro-social agency.Footnote 165 Neutralisation allows us to construct excuse-making as a means of facilitating a ‘coming to terms’ exercise for the individual where they have the chance to accept their actions in a way that allows them to self-identify as a person of moral worth. Moreover, it provides a means to acknowledge rational agency too, encouraging the individual to draw on their own decision-making capacity to support the construction of a pro-social identityFootnote 166 and the development of ‘productive’ criminal justice responses.Footnote 167 In the present context, such responses would seek to offset practices that collapse the distinction between the person and the offence, and the resultant contribution to pathogenic vulnerability and misrecognition. Speaking of penal censure, more broadly, Bottoms holds that it is normatively justifiable to censure in a way that avoids eliciting and expecting feelings and expressions of ‘deep contrition’Footnote 168 but rather focusing on building a new way of living that does not involve offending, a position largely supported by studies on desistance from crime.Footnote 169
In expanding excuse to facilitate additional considerations in moral assessments, the law is creating space for more compassionate responses that work towards humanising or ‘de-othering’ the individual. This objective matters if the law is to uphold the principle of parsimony in a meaningful way, because the more that empathy is encouraged in the moral assessors, the more positive their attitude towards reintegration and the less persuaded they are to give way to penal excess.Footnote 170
Feasibility
Finally, a brief word on feasibility, as the final feature of the RPA. Legitimising the expansion of excuse doctrine on the basis of recognising pathogenic vulnerability is feasible in the sense that it aligns with the overall objective of the criminal law in seeking to promote civil order. However, it achieves this through the advancement of social cohesion deriving from an acknowledgement that the law has a role to play in cultivating and protecting individual autonomy (in the real sense). As Jaworska puts it, ‘to act to promote and protect the flourishing of the object of care’.Footnote 171
While so overtly imbedding social justice as the driving force for doctrinal reform might seem farfetched, it is, nonetheless, a feasible objective when it is recognised as relating to a more positive interpretation of the well-established principle of parsimony. Reigniting parsimony at culpability evaluation can encourage a more moderate version of blaming that ameliorates misrecognition by constructing agency as vulnerable, by seeing the real person behind the penal subject.
Conclusion
Retributive justice says there is a case for blaming when someone has committed a culpable wrongdoing. Recognitive justice supplements this position by saying that, because of the nature of the relationship between state and person, and because of the harm that blame can do, ‘countervailing considerations’ must be taken into account.Footnote 172
As the final chapter of the paradigmatic part of this book, Chapter 4 has highlighted the political deficit inherent in current blaming principles, and responds with the RPA, as a means of legitimising a broader conception of excuse in the criminal law. To promote feasibility, it endorses the principle of parsimony as a core tenet of the criminal law, and uses it as a conceptual tool to bring attention to the punitive excess evident at culpability evaluation. The excess owing to the dominance of the rational agency paradigm was explained through the vectors of formalism and moral essentialism that act to intensify blaming practices to a problematic degree. The RPA was then applied to diagnose pathogenic vulnerability and misrecognition inherent in this excess, and to link it to the conception of responsibilisation prevalent in sociopolitical landscapes more broadly. This analysis grounded the call for a recognitive justice response at culpability evaluation with a view to ameliorating misrecognition. With knowledge of the human cost of penal intervention well established, the state ought to take a more conscious stance in how it blames; to hold to account in a way that does the least harm. The nature of excuse offers a site to practice a parsimonious approach to symbolically offset moral essentialism, which leads to a negative material impact on the person. Part III of this book will go on to apply the RPA to excuse theory and doctrine in greater detail, with a view to exploring practical possibilities for a UPD in Part IV.
