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.
