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.