Introduction
A core claim of this book is that aspects of criminal responsibility doctrine perpetuate moral injustice through disproportionate blame, and social injustice through misrecognition. In response to this charge, Chapter 2 develops a conceptual tool in the form of a Real Person Approach (RPA) to guide reform at the site of culpability evaluation;Footnote 1 by promoting the recognition of the inherent, situational, and pathogenic vulnerabilities of those who are subject to state blame; and in a way that is feasible in light of the context of current paradigmatic, theoretical, and doctrinal frameworks. To actualise the RPA, the book works with excuse doctrine, as the converse of culpability, in order to develop the idea of a Universal Partial Defence (UPD). The UPD operates on two planes: first, it extends the application of partial excuse across all offence categories and, second, it deepens the conception of partial excuse in order to permit a broader understanding of mental functioning, in addition to the inclusion of social aetiologies, as the basis of a defence. This latter step is legitimised by a bounded causal theory of partial excuse which attends to the person as both a rational and vulnerable agent. The theory retains the dominant capacity-based approach to understanding excuses through holding the person (partially) responsible for wrongdoing. However, it supplements the traditional account with a causal explanation that recognises the possibility that both prior conditions and circumstances (like adverse childhood experiences, severe environmental deprivation, addiction, and trauma) can impair mental functioning to a degree that reduces, though does not remove, responsibility for criminal conduct.
This enterprise rests upon a rather weighty precondition that the criminal law ought to advance social justice within its realm, and particularly at the site of culpability evaluation, as an important point of communication between the state and the person who offends, and between the state and the community about the person who offends.Footnote 2 The task of this chapter, then, is to attend to this precondition by arguing that the criminal law, as a form of public law, is subject to social justice scrutiny like any other public institution, and so has a responsibility to act where it can to offset social injustice, including through its excuse doctrine. A core challenge to this undertaking is the criminal law’s apparent passivity (both in doctrine and mainstream scholarship) in the face of experiences of social injustice, particularly at the point of condemnation. This disengagement with social justice concerns tends to be characterised as a feature of objectivity, resting upon an enduring presumption that such matters are extraneous to the assessment of moral (and therefore criminal) blame. Underpinning this presumption is another one; that the idea of social justice infers distributive justice only.Footnote 3 Consequently, there exists a chasm between social justice (understood as distributive justice) and retributive justice owing to their divergent objectives. Roughly, distributive justice aims to make society more just through the fairer distribution of resources, while retributive justice is concerned with ensuring that a rule-breaker receives the appropriate portion of blame and punishment on behalf of the victim/community. The task of establishing criminal responsibility presents as factual, blind to context, and so the question of distributive justice appears outside the scope of the exercise.
Indeed, while most criminal law scholars would acknowledge the fact that crime is a complex social problem often compounded by the unequal distribution of resources in society, few venture beyond a moral philosophical inquiry about blame ascription. There are perhaps two reasons for this reluctance. First, some may find it unnecessary to have to tackle a theory of state first, simply to justify one’s theoretical tinkerings with the criminal law. For example, Schulhofer represents the position of many scholars of the ‘golden half century’Footnote 4 of criminal law theory, when he says that ‘there is rarely mileage to be gained, in terms of criminal law theory, from sorting out which is the appropriate theory of the state’.Footnote 5 Second, those who have sought to address the question of rendering justice in an unjust society have made little practical headway, largely because they are seen as attempting to use the criminal law to fix a problem that it has not been designed to fix, that is, economic inequality.Footnote 6 Therefore, many are likely to have been discouraged from engaging in this type of scholarship by the fact that the criminal law is simply the wrong tool for the job. This mood is shifting, however, owing to an increased focus on the public role of the criminal law in recent scholarship (often in response to the problems of overcriminalisation, mass incarceration, and mass supervision), which carries with it an opportunity to repurpose the tools of political theory to advance social justice from within criminal law doctrine.Footnote 7
The chapter begins with an overview of the purpose of the criminal law which points to the intractable nature of the retributivist paradigm inherent in the idea of rendering justice, particularly at the point of culpability evaluation. A broader political perspective is then applied as a means of explaining the perception of criminal law as exempt from social justice scrutiny, and the consequent passivity of the law through the depoliticisation of doctrine and theory. Next, the chapter turns to a body of literature signalling a renewed focus on the criminal law as a species of public law, propelling the erosion of its impunity from social justice interrogation. Building on this trend, the chapter introduces the concepts of vulnerability and recognition with a view to providing a roadmap for activating the criminal law at the point of exculpation, which is borne out across paradigm and principle in Part II.
This chapter sketches what are some complex and often contested issues in considering the purpose and functions of the criminal law and the concept of justice more broadly,Footnote 8 and it is not possible to give adequate space to the depth and scale of the literature here. However, I take comfort in the fact that my ultimate claim does not aim to override or eliminate retributivism; rather, it amounts to this: the criminal law’s duty to hold people responsible exists in tandem with a duty to protect them. Responsibility, in this sense, can include a moderate version of retributivism (as clarified in Chapter 3), but it is one that must align with the duty to protect, which stems from political theory, and is given content through the RPA (as outlined in Chapter 2). Ultimately, then, applying the RPA to the site of culpability evaluation (through the UPD) offsets the criminal law’s passivity to social justice concerns when it blames people.
The Purpose (and Passivity) of the Criminal Law
In the spirit of feasibility, an attempt to activate the criminal law’s sense of social justice must be executed in accordance with its greater purpose and functions. The aim here, then, is not to conjure a novel objective for the criminal law, nor to set out a fresh general theory of law or the state. Rather, it is argued that it is both possible and appropriate for the criminal law to take steps to advance social justice at the site of culpability evaluation through the theoretical and doctrinal tools already at its disposal. So, let’s begin at that site with an awkward question.
‘An Awkward Question’
The RPA sets the law the challenge of recognising and responding to the vulnerability of personhood when it blames with a view to advancing social justice. This objective is borne out through the UPD which supplements the present capacity-focused construct of partial excuse as based on a narrow reading of rational agency, with a fuller account of mental functioning and the potential for the inclusion of other conditions and circumstances (like addiction, trauma, deprivation, and so on) in determinations of culpability. The approach inevitably brings to the fore the contested meanings around, and tension between, the concept of personal responsibility and the role of context in shaping behaviour. Honoré captures this tension with his ‘awkward question’: ‘How can people both be responsible for what they do and at the same time be caused to act as they do by circumstances that impair their self-control?’Footnote 9 In offering an answer, Honoré makes the point that there can be more than one explanation for an action, including one bearing on personal responsibility and one on wider social context, contemporaneously, and that where the emphasis lies depends on ‘the aim of the inquiry’: ‘What is picked out as the cause depends on how far back and for what purpose we want to trace the causal process’ (emphasis added).Footnote 10 He adds that ‘[t]he question is not which view is exclusively correct but which it is better to adopt when we assess people’s behaviour in everyday life and the law’.Footnote 11 Thus, we can see how the approach to culpability evaluation is contingent on the purpose of the criminal law, and that purpose is not singular or fixed, but informed by value judgements about the most fitting response to rule-breaking in a given time and place.
Honoré’s awkward question is already answered by the law but in a way that this book argues is overly restrictive to the extent that it can be characterised as a form of social injustice through misrecognition of the subject of criminal responsibility attribution. It is argued throughout that the present emphasis as between person and context is weighted too heavily towards the individual as cause in themselves. This position is borne out through the dominance of an overly narrow understanding of rational agency at culpability evaluation, which is exemplified in doctrine by the fact that too few grounds for excuse are recognised, the present understanding of excuse is too narrow, and too little acknowledgement is afforded to responsibility as a scalar phenomenon. In response, Chapter 2 sets out the RPA, which is underpinned by vulnerability and recognition theory, with a view to shifting the emphasis to allow more space for context to inform determinations of culpability, where they bear on an individual’s cognitive, volitional, and/or emotional capacities, and to recognise such capacities as scalar in nature, ultimately reflecting a more authentic account of personhood. It is argued that this approach is more fitting because it is closer to current understandings of human psychology, and lends further legitimacy to the criminal law because it works towards advancing social justice through intervening (at least at one small, but highly symbolic, point) in a cycle of responsibilisation that contributes to wider punitive culture and misrecognition in the form of marginalisation and social harm.
What Is the Criminal Law For?
But, of course, the particular aim or inquiry referenced by Honoré does not exist in isolation, and there continues to be a lively debate around what the whole criminal law enterprise is actually for.Footnote 12 This discourse is further complicated by confusion about the assumed taxonomy underpinning the literature, regarding the diverse meanings afforded to terms like purpose, aim, role, and function, and how these classifications relate to one another.Footnote 13 I do not aim here to contribute to this particular debate, beyond highlighting its depth and diversity, and the fact that there is no magic key to unlocking a straightforward account of the criminal law.Footnote 14 That said, I agree with scholars such as Duff, Chiao, and Farmer that, beginning at the highest level of governance, we might say that the overarching constitutional purpose of criminal law is the preservation of civil order.Footnote 15 Farmer understands civil order in a broad sense – that it is:
not primarily about moral community, but the co-ordination of complex modern societies composed of a range of entities or legal persons that are responsible, in a range of different ways, for their own conduct, for the wellbeing of others, and for the maintenance of social institutions.Footnote 16
Accordingly, the aims pursued to maintain civil order are multifaceted and varied, tending to ebb and flow along the criminal process, contingent on the function to which they apply, be it criminalising (prohibition stage), condemning (prosecution, liability, and culpability stages), or punishing (sentencing and sanction stages),Footnote 17 and contingent on the prevailing trends at play in the criminal justice environment at a given time and place.Footnote 18 Later, we will consider how this wider purpose bears on the particular requirements of the RPA, but for now it is necessary to set out the more conventional account of the aims of criminal law in terms of maintaining order through the threat of condemnation and punishment for the breach of publicly prescribed rules.Footnote 19
Broadly speaking, these aims tend to be characterised by consequentialist (instrumentalist) and retributivist (deontological) accounts. In assessing a particular criminal justice strategy (be it in the context of punishment or a decision about whether or not to prosecute), a consequentialist approach asks whether the net gain for society is greater than the costs of a given punishment:Footnote 20 a forward-looking account. For example, consequentialist arguments in the punishment sphere tend towards the reduction of crime as a desired result,Footnote 21 whether through strategies designed to deter, rehabilitate, or incapacitate.Footnote 22 Moreover, consequentialist justifications, particularly deterrence, naturally feature strongly at the prohibition stage where criminalisation is considered in the context of prevention and harm reduction, in addition to articulating the limits of the criminal law.Footnote 23 Though some consideration of consequentialist goals bears on the condemnation stage in terms of assessing the benefit of a prosecution, for example, such concerns figure less (on a formal level, at least) at the point of culpability evaluation.Footnote 24 For once the decision to prosecute is made, the law appears to take a decidedly retributive turn. Retributivism is backward looking and agentic in nature, focusing on the subject of the criminal law and evaluating the blameworthiness of their action as a means of justifying punishment.Footnote 25 For the retributivist, culpable wrongdoing alone leads to a just desert of condemnation and (usually) punishment.Footnote 26 In its purest sense, then, retributivism does not attend to consequentialist concerns, and as a justification of condemnation and punishment, it does not appeal to the greater good of the community (e.g. crime reduction), or to the person who offends (e.g. rehabilitation).Footnote 27
Though some schools of thought remain committed to a purest interpretation of each category, the most dominant accounts tend towards a mixed-instrumentalist approach, which incorporate both deontological and consequentialist perspectives to a greater or lesser degree.Footnote 28 For example, most consequentialists would recognise the need for culpable wrongdoing as a prerequisite to punishment.Footnote 29 Conversely, the dominant strands of retributivist discourse are largely pragmatic in nature, acknowledging that occasionally it is appropriate for a desert-based account of blame and punishment to bend to non-desert-based rationales grounded in compassion, for example.Footnote 30 This view is reflected in practice, where the prosecutorial and sentencing policies of most modern legal systems adopt a hybrid approach.Footnote 31 Recognising its prevalence, Brink describes this form of retributivism as ‘predominant retribution’:
Retributivism is central if it provides the right account of whom to punish, why we should punish, and how much we should punish. But this still leaves unanswered the question how we should punish. Here, retributive ideas can and should be supplemented with forward-looking rationales. Provided that we punish all and only the guilty, punish them because they deserve punishment, and punish them in proportion to their just deserts, we should punish them in ways likely to promote rehabilitation, deterrence, and moral communication and education.Footnote 32
Brink identifies a second, less prominent, form of predominant retributivism which focuses on desert evaluation, and which reflects more closely the aim of the UPD in achieving a more fine-tuned just deserts at the point of culpability evaluation. According to Brink, this form of retributivism allows ‘consequentialist considerations to supplement considerations of desert in the determination of just how much to punish’.Footnote 33 This version is based on a view of culpable wrongdoing and the corresponding punishment as ‘a range or interval of values’, as reflected in the approach taken by sentencing guidelines in many jurisdictions.Footnote 34 Later, I argue that an appeal to a more instrumentalist account, in the form of recognitive justice, is possible not just at the punishment stage but also at the guilt stage, through the use of a bounded causal theory as a rationale for partial excuse in Chapter 7, and as expressed through the UPD in Chapter 8.
For now, the point is that whether retributivism is seen as a core rationale of the criminal law,Footnote 35 or merely a prerequisite for the greater aims of mixed instrumentalist accounts of punishment,Footnote 36 it is inexorable. For example, in her account of the legitimacy of international criminal law, Bock captures the magnitude of retributivist culpability as a ‘universally recognised rule’: ‘The principle of personal guilt as a basic prerequisite for criminal liability, for example, is as such generally recognised in most societies.’Footnote 37 Even the development and increased use of criminal justice responses underpinned by rationales of reparation, reconciliation, diversion, supervision, treatment,Footnote 38 and so on are perceived as reinforcing, as opposed to undermining, what Blom Cooper alludes to as ‘the mainstream’ when inferencing the status of retributivism.Footnote 39
The centrality of retributivism at the site of culpability evaluation, then, informs the conditions of responsibility which are contained within principles and doctrine directed at establishing desert through determinations around mens rea and excuse, in particular.Footnote 40 Returning to the purpose of the criminal law, this reading reflects the conventional account which is captured by Alexander, Ferzan, and Morse, when they say that the criminal law’s goal is ‘preventing harm’.Footnote 41 For the authors, it does so through identifying wrongful conduct and delivering just deserts to culpable wrongdoers.Footnote 42 Criminal responsibility attribution, then, is seen to contribute to this undertaking at the condemnation stage, where questions of liability and culpability are considered with a view to determining individual blameworthiness as a prerequisite to punishment.Footnote 43
This conventional account is sometimes deemed impoverished by virtue of its exclusion of another, more nuanced, happening at culpability evaluation. Lacey captures this sense when she speaks of the significance of criminal responsibility doctrine and principle in terms of coordinating social conduct in addition to legitimating the criminal law ‘as a system of state power’.Footnote 44 As such, we might recognise a further instrumentalist function or benefit underpinning criminal responsibility principle that is of a didactic nature.Footnote 45 For, in attributing criminal responsibility, the law acts to encourage compliance (through attitudinal and behavioural change)Footnote 46 by eliciting remorse in the wrongdoer and communicating to them and to the wider community, the moral significance of that wrongdoing, with a view to pursuing a greater social alignment of morals.Footnote 47 It is in this sense that a more meaningful understanding of social cohesion can be understood as a core aim of the criminal law. This idea is threaded through the chapters to follow in Part II, but for now it is sufficient to highlight the fact that this more subtle function is afforded significantly less attention in traditional accounts than the retributivist aim at culpability evaluation.
The Reign of Retributivism at the Condemnation Stage
The retributive paradigm commands particular potency at the condemnation stage of the criminal law. Its dominance here is significant because the condemnation stage holds a pivotal position in what Norrie terms ‘the penal equation’, where crime plus responsibility equals punishment.Footnote 48 The condemnation stage is concerned with an individual’s criminal responsibility, and includes the process of evaluating culpability or desert in the context of the wrongdoing committed, which involves consideration of principles relating to both inculpation and exculpation, and the pronouncement of that evaluation through verdict.Footnote 49 Most theorists emphasise, and some simply assume, the necessity of condemnation of the accused as a precondition of punishment.Footnote 50 The import of this stage in the process is captured by Zehr in the language of guilt when he says, ‘The question of guilt is the hub of the entire criminal justice process. Establishing guilt is the central activity, and everything moves toward or flows from that event.’Footnote 51 Therefore, as a focal point in the process, the condemnation stage directs the overall tone of how the criminal law maintains social order through what Hart describes as ‘a formal and solemn pronouncement of the moral condemnation of the community’.Footnote 52 Indeed, for Hart, it is this judgement which accompanies and justifies the imposition of punishment that distinguishes the criminal law from civil law.Footnote 53 Though it is important to keep sight of its role in the penal equation, the condemnation stage ought to be considered as a discrete site of analysis also, given its impact on relevant stakeholders. As O’Malley notes, ‘[t]he attribution of criminal responsibility has such important legal and moral consequences for both the condemner and the condemned that the ulterior question of disposition should not be allowed to dictate the principles on which responsibility is established’.Footnote 54
On its own merits, then, condemnation, in terms of establishing criminal responsibility, is largely understood as a sub-category of moral responsibility,Footnote 55 in that the process demands and permits a response from the defendant in their capacity as a moral agent.Footnote 56 For, when the criminal law deems an individual guilty of an offence, it is an acknowledgement of their moral autonomy through the recognition of their capacity for rational choice, the fact that they could have done otherwise, notwithstanding wider circumstances. Therefore, with notable exceptions,Footnote 57 theoretical discourses relating to criminal responsibility tend to focus on the agency and/or actions of the individual, as opposed to a wider construct of responsibility that might consider factors pertaining to context or collective.
Moore is a resolute proponent of this approach, and his account exemplifies how a retributive paradigm is imbedded in an individualistic reading of criminal responsibility.Footnote 58 For Moore, retribution is the primary function of the criminal law. He views retributivism as an intrinsic good and, as such, most of the weight of his argument is based on the assumption that punishing the morally culpable is also intrinsically good. The basic premise of Moore’s theory lies in a demand for legal liability to correspond with moral responsibility. He maintains that the relation of active responsibility that exists between a person and their wrong consists of the properties of wrongdoing and culpability, and these properties in turn consist of the properties of voluntariness and causation, and intentionality and lack of excuse, respectively. Thus, the object of responsibility is given by the theory of wrongful action, and criminal responsibility ascription is akin to personal responsibility, in that it is merely establishing impartial information about the individual.
Though many scholars are critical of Moore’s action theory as it relates to the concept of responsibility,Footnote 59 most theories of criminal responsibility share with it a focus on the individual as the ultimate seat of responsibility in the criminal law, for example, discussions relating to capacity theory and fair opportunity theory,Footnote 60 character theory,Footnote 61 and control theory.Footnote 62 As a result, Ristroph observes of criminal responsibility scholarship that ‘[w]e might put the inquiry in terms of agency rather than action, and say that to be responsible is to be an autonomous agent’.Footnote 63 This point applies particularly to the realm of excuses which is the forging ground of criminal responsibility, where most literature focuses on whether excuses like insanity are best explained by a capacity account or a character account.Footnote 64 Those that do attempt to include wider concerns have had little success in expanding the construct of responsibility in the criminal law beyond the agent.Footnote 65 Even from an external or interdisciplinary perspective, many of the great debates on the topic of criminal responsibility are individualistic in nature. For example, normative discourses on law and neuroscience and law and psychology are largely concerned with the mental state of the individual.Footnote 66 Though progress is being made towards recognising the political nature of the criminal law (discussed later in this chapter), in addition to broadening the construct of criminal responsibility both within and beyond the individual (discussed in Part II), overall there has been significantly less scholarly representation of the political character of criminal responsibility, particularly as it relates to the discrete process of culpability evaluation.Footnote 67
Our time and place, then, continues to bear witness to the intransigent presence of retributivism as an overarching aim of the criminal law, and acutely so at the point of condemnation. Though retributivism has a role to play in rendering justice,Footnote 68 its unchecked hegemony is problematic because it tends to obscure the public duty owed by the state to its citizens, including those who offend, thus facilitating passivity towards, and perpetual evasion of, questions relating to wider injustice, particularly at the point of culpability evaluation.
Social Justice, Distributive Justice, and the Depoliticisation of the Criminal Law
An appreciation of dominant trends in political theory supplements an understanding of retributivism as apparently impervious to social justice scrutiny. The elevation of distributive justice over and above any other form of social justice has reinforced a presumption of the latter conception’s incompatibility with retributive justice. Yet the fissure between distributive and retributive justice is based on a superficial distinction between the two paradigms when considered through an agentic lens. For the construct of the person behind classical liberal thought can be characterised as a rule-abiding version of the responsible person of the criminal law. This insight facilitates a recalibration of the relationship between the moral and the political in the criminal law, and the foregrounding of the political aspect of the individual’s relationship with the state in the next section. It also justifies a call to action for the criminal law to recognise compelling developments in political theory regarding the conceptual anatomy of personhood in order to provide a more authentic account of the agent of the criminal law, thereby laying the foundation for the RPA advanced in Chapter 2. But first it is necessary to untangle the relationship between distributive and retributive justice, with a view to reconciling social and criminal justice in what follows.
Social justice is a domain of democratic legitimacy, and some would argue the latter depends on it for survival, not to mention the social and economic well-being of the people of the democratic state.Footnote 69 Though a multifaceted concept, the meaning of social justice as it is most commonly understood is encapsulated by Miller when he says: ‘[v]ery crudely, I think we are discussing how the good and bad things in life should be distributed among the members of a human society’.Footnote 70 The question of the distribution of benefits and burdens across society is an extensive normative investigation that has been the subject of much debate across political philosophy, human rights, and critical theory for many decades. A detailed account is beyond the scope of this book; suffice it to point out the monopoly of the distributive account as an explanation of our modern conception of social justice.
The political philosophy of John Rawls has been instrumental to the dominance of the distributive account. Rawls’ A Theory of Justice was a springboard for extensive ideological enquiry into the notion of a just society and, though not without its critics,Footnote 71 remains highly relevant today. Rawls’ social primary goods approach centres around the notion of justice as fairness, whereby the subject of justice is identified as the structure of society, and the idea of fairness itself relates to those individuals in society. Rawls’ theory is transcendental in nature, in that it relies on a ‘hypothetical contract’ and ‘not an attempt to explain how social arrangements have actually come about’.Footnote 72 For Rawls, the concept of justice is acknowledged by individuals when they ‘understand the need for, and are prepared to affirm, a characteristic set of principles for assigning basic rights and duties and for determining what they take to be the proper distribution of the benefits and burdens of social cooperation’.Footnote 73 Modern discourses on social justice are perceived as evolutions of the classical discussions of distributive justice but pursued more methodically and in a broader scope in terms of what might amount to an appropriate measure of justice, be it basic income, healthcare, happiness, education, and so on.Footnote 74
That contemporary accounts of social justice are, for the most part, so strongly associated with questions of distributive justice alone has had the effect, according to Miller, of dividing ‘social justice from other kinds of justice that fall outside its scope – most notably retributive justice’.Footnote 75 What does bind a discussion of the two, however, is the notion of ‘desert’ as it relates to both distributive and retributive considerations.Footnote 76 Heffernan captures the association when he asks: ‘Does the fact that someone has not received what he deserves from society affect the calculation of what he deserves in criminal justice?’Footnote 77 This question is demonstrative of how the relationship between the two forms of justice is most often framed within the conceptual landscape of social contractarianism and within the realm of discourses regarding the justification of social and penal institutions, particularly from the Rawlsian tradition. While the question links the two concepts under the umbrella of desert, seeking to answer Heffernan’s question using the tools of that tradition appears to yield a negative answer, based on differing interpretations of the concept of ‘desert’, and so perpetuates the criminal law’s passivity to social justice enquiry.
The most prominent interpretation of the relationship between the two concepts of desert derives from Rawls’ claim that desert in distributive justice and desert in retributive justice are ‘asymmetrical’. In this context, Scheffler usefully categorises the different forms of desert as ‘moral desert’ (‘that is … desert for which the desert basis is moral virtue or worth’) and ‘desert simpliciter’ (‘the assignment of shares [which] has nothing to do with the moral worthiness of the people who receive them’).Footnote 78 Therefore, for Rawls, ‘to think of distributive and retributive justice as converses of one another is completely misleading and suggests a different justification for distributive shares than the one they in fact have’.Footnote 79 Consequently, under the Rawlsian account, the role of desert in a retributive context gets personal: ‘[A] propensity to commit such acts is a mark of a bad character, and in a just society legal punishments will only fall upon those who display these faults.’Footnote 80 As a result, retributive justice appears to be syphoned off to the realms of moral philosophy, due to the inherent wrongness or pre-institutional nature of the criminal act. Social justice and criminal justice are divided by the bestowing of essentially different modes of analysis – political for distributive justice, and moral for retributive justice. This view promotes the depoliticisation of the retributive paradigm, and consequently a passivity in the criminal law about a person’s wider context that ought to bear on questions of condemnation.
Yet the separation of retributive justice from the idea of social justice tends to dissolve when the ideas are regarded through an agentic lens. The retributive model at the guilt stage is underpinned by liberalism owing to the criminal law’s conception of the individual as rational, autonomous, and abstract.Footnote 81 Conversely, a standard criterion of the liberal understanding of citizenship is the capacity for rational agency.Footnote 82 Rationality underpins freedom in the sense that the citizen has the capacity to choose how to act, and likewise the equality of status as a citizen is based on rational, autonomous agency.Footnote 83 The state respects that agency when it condemns and punishes because it acknowledges that we are capable of independent choice, only the person who offends chose wrongly. This translates into the language of liberalism when we say that in respecting agency, the state is recognising our freedom to choose, and in ascribing objective responsibility for a criminal act (blind to context), it is acknowledging our equality as citizens.
The liberal construct of the person endures because it exists as an engrained assumption in our law, philosophy, and wider culture,Footnote 84 not least in a criminal law context. As Norrie notes, ‘we recognise the practical ways in which the liberal model resonates with individual moral experience’.Footnote 85 Thus, the moralistic approach of retributive justice continues to reign because it speaks to a common-sense understanding of justice based on a classical liberalist construct of agency. The dominant cultural understanding of the ‘doing of justice’, then, entails an automatic association with condemnation and punishment. Accordingly, though unquestionably a species of public law, the prominence of distributive justice (over other forms of justice) and the liberal ideal of rational agency have reinforced the effective depoliticisation of the criminal law through the entrenchment of the retributivist paradigm at the condemnation stage. Consequently, the development of the criminal law and how we theorise about it has been neutralised by the boundaries of the penal equation, resulting in a social justice inertia at its core.Footnote 86 However, a renewed focus on the role of criminal law as a species of public law lends an important context to its activation at the condemnation stage.
Criminal Law as Public Law
Foregrounding the public nature of criminal law goes some way towards recalibrating the relationship between the moral and the political in terms of addressing the criminal law’s passivity towards a person’s wider experiences that ought to bear on the condemnation stage. This perspective delivers two core advantages in pursuing the RPA to ascribing criminal blame. First, it provides space for theoretical innovation around the type of justice owed by the state to the citizen subject to condemnation (as borne out through the use of vulnerability and recognition). Second, it facilitates access to the conceptual toolkit of political theory, with a view to providing a different perspective on how to approach theorising about justice, through a ‘real world’ mode of analysis, as expanded on later in this chapter.
The justification of condemnation has always required a political theory,Footnote 87 and so framing criminal law as public law is not, in itself, a radical claim. After all, as Fletcher notes,
the criminal law addresses the state’s authority to intervene in people’s lives. That authority must first be justified as a matter of political theory before one turns to the criteria, including perceptions of morality, that might enter into the use of the state’s power.Footnote 88
Yet historically the question has been directed largely towards issue of criminalisation, and at justifying the imposition of punishment, leaving the site of condemnation, in particular, underscrutinised from a political perspective. Recently, however, a body of scholarship has reinvigorated the discussion of the role of the criminal law as a public institution.Footnote 89 Kelly alludes to the significance of this shift from a cultural perspective, in terms of eliciting ‘a transformation in public thinking about criminal justice as well as philosophy’s reckoning with it’.Footnote 90 The significance of recognising the criminal law as a species of public law is emphasised by Thorburn, who claims:
[w]e are liable to misunderstandings about the proper scope of the criminal law if we think of it as a whole unit, a law unto itself, whose moral value can be fully explained independently of any other area of law.Footnote 91
An important development in this field is that discourse reaches beyond the question of punishment in terms of the justification of criminal law,Footnote 92 recognising the significance of the criminal law’s role in its own right. As Farmer writes, ‘there is a public interest in resort to criminal law … which cannot be explained solely in terms of the punishment of an individual for a wrong’.Footnote 93 This understanding of the role of the criminal law is important to the discussion of culpability evaluation because it may be directed towards tempering the hegemony of retributivism at that site by activating the criminal law to attend to the political status of the person at the condemnation stage, as something more significant than a precondition for punishment. There are two observations to make about dominant trends in the literature before we arrive at that point, however: the first relates to how the political tends to be engaged with in criminal law discourses, and the second highlights the persistence of the liberal agent as the model of personhood.
First, conversations about criminal law as public law can often revolve around criminalisation, in particular. One explanation for this focus is that our understanding of the relationship between political and moral is underpinned by an assumed division of labour across criminal law stages: the political work concerns criminalisation, and the moral work takes place at the condemnation stage.Footnote 94 Fletcher’s explanation of the relationship between the political and the moral epitomises the division; he explains:
[w]rongdoing is expressed in the violation of norms enacted by the state. As culpability or guilt is secondary, so is the relevance of moral thoughts in the criminal law. As wrongdoing invites consideration of guilt or culpability for the wrongdoing, so political theory authorises the moral assessment of culpability.Footnote 95
Although a political lens on criminalisation is vital in terms of challenging the scope of the criminal law,Footnote 96 this frame can have the effect of insulating the condemnation stage from political scrutiny because it places the spotlight on more influential conversations about the political nature of the criminal law at the front end, perpetuating the view of the moral and the political as incompatible at the site of condemnation.
More recent accounts, however, though focused still on criminalisation, attest to the role of responsibility in this enterprise. Notable examples include Duff’s ‘public legal moralism’Footnote 97 account which argues that the criminal law should only be concerned with wrongs that fall within the public realm – that threaten the polity’s civil order.Footnote 98 For Duff, the public nature of responsibility is reflected in its relational terms, and in the requirement for ‘answerability’:
[A]nswerability is to a person or body who has the right or standing to call me to account. … Claims of the form ‘A is responsible for X’ are therefore incomplete: they must be filled out by specifying … to whom A is responsible for X.Footnote 99
Further, Farmer’s explanation of how the political aim of civil order coheres with social norms emphasises the criminalisation stage, through linking ‘the normative question of what the criminal law should regulate’ with ‘the question of civility and the modern understanding of the social’.Footnote 100 Farmer too explains how responsibility bears on this endeavour, framing it as a tool to institutionalise the concept of the person.Footnote 101 He writes: ‘As a form of normative order, law should be understood as articulating the properties of those capable of being ordered in relation to the different ends or purposes of different areas of law.’Footnote 102
Other discourses that direct the political lens to the site of condemnation tend to respond more pointedly to the stigma and injustice associated with criminal condemnation, either by arguing for a less potent form of blame,Footnote 103 by rejecting the concept of moral blame for the criminal law altogether,Footnote 104 or by seeking to expand the conception and application of responsibility to include other stakeholders.Footnote 105 Though I may not agree with some of the conclusions of these works, many of their contentions align with the sentiment underpinning the RPA, and as such they are attended to more closely in Part II. However, the approaches are noteworthy at this point because they highlight some of the difficulties that come with seeking to apply a social justice lens to culpability evaluation, which helps to explain why progress is slower here. First, bringing political considerations to the heart of culpability evaluation raises unpalatable conversations for existing power structures,Footnote 106 in terms of developing justifications for and approaches towards recognising notions of collective responsibility for crime,Footnote 107 and the responsibility of the state in a domestic criminal law context.Footnote 108 Second, the sheer magnitude of the task might hinder progress towards justice by seeming to demand a significant overhaul of the criminal process in relying on a new paradigm,Footnote 109 or in a complete denouncement of retributivism.Footnote 110 Conversely, while theory may be advancing on the issue, tangible reform in this direction remains evasive. These conversations are critical, however, to recognising the centrality of the construct of the agent, and the state’s relationship with the person at the condemnation stage, as a means of capturing the political significance of this site. For instance, Kelly writes: ‘Moral responses to wrongdoing must be understood in relation to their ambitions, which include shaping future personal or impersonal relationships according to the values, for example, of love or political membership.’Footnote 111
The second observation relates to the fact that most dominant accounts in the criminalisation context either assume liberalism or more openly rest on a particular version of rational agency. For instance, in Duff’s account, the responsibility of an individual depends upon their capacity in terms of reasons responsiveness,Footnote 112 that is, they are considered a responsible agent if they are capable of recognising and responding appropriately to the relevant reasons that bear on their circumstances. For Duff, we are responsible agents insofar as we are rational agents, provided that the agent (in terms of their emotions, desires, beliefs, and other cognitive dispositions) is responsible to reasons.Footnote 113 Thorburn argues that the ‘responsible moral agent’ construct is a faulty foundation upon which to build a theory of criminal justice. In contrast, he argues for a conception of ourselves as ‘free and equal moral agents’ as the conception of the individual that underlies modern theories of liberal constitutionalism. For Thorburn, this construct of agency is more effective than the ‘responsible moral subject’ because it resolves the problem of other people not acting in accordance with the principle to treat the moral worth of all equally, as in the state of nature (the intrinsic ‘bad character’ problem outlined earlier).Footnote 114 Though he places the ‘responsible moral agent’ and the ‘free and equal moral agent’ in opposition to one another, they are in fact both underpinned by an abstract construction of the individual as a rational agent. Much of the literature that centres on condemnation (highlighted earlier) seeks to bring a more comprehensive account of the agent to bear in culpability evaluation and to recognise the political import of condemnation; however, it is largely silent on the form of political theory adopted, or, put differently, it assumes the dominance of liberalism in this space. For instance, Lacey and Pickard write:
[W]ithin a broadly liberal, democratic society, equal concern and respect are ideally accorded to all. These moral and political values demand that punishment should proceed not only with humanity and dignity, but with a view towards reform and reintegration of offenders into the moral community.Footnote 115
Moreover, Kelly argues for a ‘collective commitment to political and social equality’ through what she terms ‘civic justice’, though she does not set this idea in the context of existing political accounts, suggesting it requires further elaboration.Footnote 116
Transcendental perspectives of the individual as rational agent, as modelled by Duff and Thorburn, have philosophical weight but limit the development of the criminal law towards a more socially just reality (discussed later and in Part II). So what type of political theory ought to be brought to bear on condemnation if liberalism brings us up against the problem of idealism? Chiao gets closest to addressing this issue in his account of a political justification of the criminal law, in that he acknowledges that the political nature of criminal law does not provide its content.Footnote 117 In terms of crafting normative theory for criminal law, he argues that the same values and ideals that explain our reasons for valuing social cooperation under law apply to the moral evaluation of the criminal law too.Footnote 118 Chiao acknowledges the priority of the political when he recognises that the criminal law ‘draws its value from the value of the public institutions and practices it supports’.Footnote 119 As such, he takes the political aspect deeper than others when he proposes a normative theory of criminal law that relies on establishing equality through a capabilities measure, whereby public institutions should ‘strive to promote effective access to central capability for all’.Footnote 120 This strategy underpins principles of evaluation of criminal justice interventions, including ‘anti-subordination’ and ‘inclusive aggregation’ whereby they are evaluated ‘in terms of [their] overall impact on effective access to central capability[ies], with priority for the interests of those whose access to those capabilities is least secure’.Footnote 121 In adopting this strategy, Chiao is not only permitting the political to enter the content of criminal law in a more meaningful way, but also uprooting classic liberalism as underpinning the measure of justice (discussed further later in this chapter) and replacing it with a capabilities approach.Footnote 122 The significance of this move is that it has the potential to facilitate more serious consideration of the power differential at play between the individual and the public through the criminal law, as discussed in the next section.Footnote 123
Before thinking about how we can use political theory to advance justice at the point of culpability evaluation, however, it is necessary to delve deeper into the relationship between the state and the person who offends in a social justice context. For, as Duff advises, ‘if we are to understand the criminal law, as a core institution of the state, we must begin with an account of the state’s proper responsibilities and aims, and of its proper relationship to its citizens’.Footnote 124
The State and the Person Who Offends
Recognising the dominion of the public nature of the criminal law over its retributive function offers a basis for reconsidering the relationship between the state and the person who offends, particularly when that view is filtered through the condemnation stage.Footnote 125 Much of the discourse around what the state owes to the person takes place in the arena of citizenship. In this context, it is commonly argued that only domestic citizens are bound by the criminal law function of the state on the grounds that it is its citizens, only, who the state addresses.Footnote 126 There is not space to provide a comprehensive analysis of the meaning of citizenship here.Footnote 127 However, it is noteworthy that the understanding of citizen in prominent discourses is frequently afforded a meaning beyond an official status or designation, to include more substantive understandings of the term. For instance, accounts can range from characterising the citizen as an addressee of the law,Footnote 128 or as someone who can self-identify as a member of the moral community through shared values.Footnote 129 And though the understanding of personhood in the RPA includes all penal subjects (whether citizens or non-citizens), these discourses provide a useful foundation for the discussion given that they are set against the backdrop of liberal democracy, which provides shape to the account of the person that is presented in Chapter 2. Moreover, as Coca-Vila and Irarrázaval point out, the benefit of engaging with this literature lies in the fact that it puts the person at the heart of conversations about the legitimacy of the criminal law and, in this vein, it also facilitates questions about the appropriateness of condemning those who may fall outside or at the margins of a formal status and, particularly, for present purposes, those experiencing social exclusion.Footnote 130 Thus, to advance social justice in the criminal law from the perspective of the criminal law’s subject, it is useful to consider how the state relates to its citizens. At present, it is argued that the dominance of the retributive paradigm, as underpinned by the liberal construct of agency, results in an idealised model of the individual, which tends to obstruct considerations of injustice as experienced by the person who offends.Footnote 131 This section establishes that the state has a responsibility to attend to injustice experienced by those who offend contemporaneously to dealing with the moral question of blame.
It is argued in Part II that the hegemony of the dominant approach to rational agency and the resultant collateral consequences of responsibilisation reinforce a culture of punitiveness in respect of those who offend, which is conceptualised as misrecognition. For present purposes, it is sufficient to highlight how the state’s interaction with an ideal account of personhood through the criminal law raises concerns. For example, Fletcher highlights the marginalised position of the person who offends whether or not retributivism is interpreted as underpinned by liberalism or libertarianism. He notes that, in the latter case, though the idea of freedom is an important basic value, it results in isolation because ‘it leaves out of consideration a whole set of values that resonate with modern sensibilities’.Footnote 132 He similarly accuses communitarianism of reinforcing the notion of ‘insiders and outsiders’ through the criminal law, referencing Schmitt’s distinction between ‘criminal law for friends or citizens’ and ‘criminal law for enemies’.Footnote 133 The former focuses on enabling the person who offends to pay for their crime to the victim/society, and the latter removes or neutralises the individual through various modern incarnations of exile.Footnote 134 The condemnation stage (particularly culpability evaluation and its expression through conviction) models the terms of engagement between the polity and the person who offends. At present, that model is problematic. As Lacey and Pickard argue, the type of ‘affective blame’ at work in the criminal law lends itself to a variety of negative and divisive attitudes and emotions, such as disgust, scorn, and hatred, to name but a few, which can be played out in the criminal justice system and the wider community, through ‘seeking retaliation, retribution, and vengeance, rejection and banishment from the community, and the withdrawal of basic respect’.Footnote 135
The loss of respect that people experience when they are condemned is tied to a sense that those who offend lose any claim to justice that they may have had (if given the status of citizen), owing to their Rawlsian ‘mark of bad character’.Footnote 136 This stance is ill founded, however, as even under social contractarianism, the state’s duty to the citizen as protector, comes before its duty as punisher.Footnote 137 At its most basic level, Locke argued that the citizen’s fundamental duty was obedience of the law of the state, with the ultimate aim of ensuring shared security.Footnote 138 This approach is also reflected in modern liberal discourses.Footnote 139 However, as Edgeley notes, ‘even assuming that obedience to law is the prime duty of citizenship, surely criminals can’t forfeit their rights unless the duty precedes the rights’.Footnote 140 Indeed, Kymlicka and Norman assert that rights precede duties owing to the fact that the rights must be discharged before in order to facilitate full citizenship participation in the first instance,Footnote 141 an argument that resonates in particular in light of the role of social disadvantage in criminogenic behaviour.Footnote 142 Therefore, we might say that those who offend are ‘due’ social justice to the same extent as non-offending members of the community. Perhaps more so, when we consider that condemnation is the point at which the state changes its relationship towards the individual; a duty to condemn (and potentially to punish) appended to (though not supplanting) its duty to protect.
If we accept that citizens who offend are due social justice at the same time as they are blamed, then what is the nature of that justice, and how can the criminal law deliver it (if at all)? The limit of the social contractarian approach in this regard is alluded to above and has been framed as an issue of methodology.
The Problem with a Purely Ideal Approach
A core barrier to viewing the person who offends as entitled to state protection (beyond a procedural context) is found in the idealised construct of the person because it excludes consideration of justice as experience. Of course, there are profound advantages to the ideal method, particularly in terms of gaining a ‘systematic grasp’ of everyday problems.Footnote 143 One limitation, however, is that it appears to restrict the range of relevant information that may be considered to that of a particular reading of the rational capacity of the person. This is problematic in a political sense because ‘health and stability of a modern democracy depends, not only on the justice of its “basic structure” but also on the qualities and attitudes of its citizens’.Footnote 144 So, as Edgely notes, while focusing the blame question on the individual exclusively might provide reassurance or self-affirmation for the community, it is ultimately damaging: ‘[I]t undermines community by facilitating the othering of the offender, allowing his citizenship to be eroded.’Footnote 145
A purely abstract theory of justice is not designed to tailor its justice responses to an identified social harm. As such, the classic liberal account, which was shown to underpin the construct of the rational agent of the criminal law, does not identify, and therefore cannot address, certain real-world problems that are imbedded in the structures of society, for example, the overrepresentation of people involved with the criminal justice system who experience/have experienced mental health issues, trauma, and socio-economic deprivation. Referring to political theory, Valentini captures the stark repercussions of this apparent detachment from reality as a perception that ‘much of the current work in political philosophy is defective because it is of little (possibly no) practical help’.Footnote 146 (Even Duff admits to the pursuit of an empirical description of the criminal law as a ‘depressing task’).Footnote 147 As a response to the impact problem, there has been a movement towards considerations of methodology in the development of theory,Footnote 148 with various forms of ‘non-ideal’ approaches taking hold as an antidote to the abstract. The terminology of ideal/non-ideal derives from Rawls’ differentiation between the ‘ideal’ component of his theory which focuses on the positive definition of justice as fairness and assumes a willingness on the part of actors to fully comply with the principles of justice, in addition to assuming the conditions of political cooperation. Rawls’ non-ideal component then involves considering different scenarios of injustice by reference to the ideal principles already established and accepted. So, for Rawls, ‘non-ideal’ does not involve an evaluation of real-world scenarios, but is rather an abstract exercise in the application of his first principles to normative questions about how society should act in particular areas, for example, healthcare, welfare, education, and so on, and not to how those areas actually function in terms of their justice credentials.Footnote 149
The meaning of non-ideal has since evolved to include a broad interpretation of theories that lack idealised assumptions and/or take the elimination of injustice as their motivation.Footnote 150 Though Valentini distinguishes between three particular sub-categories of the ideal and non-ideal debate, the substance of this book relates to the subset concerning ‘end state’ (ideal) and ‘transitional’ (non-ideal) justice. End state justice theory is aimed at ‘identifying an ideal of societal perfection’, whereas transitional justice is concerned with making ‘transitional improvements without necessarily determining what the “optimum” is’.Footnote 151 The transitional approach is arguably the most influential challenger to the dominant Rawlsian account,Footnote 152 and is most suited to addressing the abstracted nature of the agent within a criminal law theory context with the aim of advancing justice, subject to some modifications discussed later in this chapter.
In the case of the condemnation stage, then, we can point to the reality of the collective as being instrumental to forming a greater appreciation of the significance of the site as a potentially unjust social mechanism, with a view to responding in a way that advances justice and ensures a more fine-grained culpability evaluation. The next section charts the path taken by this book in the hope to ignite a more authentic way for the state to engage with the person through the paradigm, principle, and doctrine of the criminal law.
A Pathway for Activating the Criminal Law
As established earlier, the political duty of the state towards the person who offends runs in tandem with its duty to deliver just deserts through holding them responsible for culpable wrongdoing. We have seen how such an understanding of the criminal law helps in fore-fronting the role of its subject, but that the ideal nature of liberalism results in an inadequate account of personhood. As such, this section introduces another aspect of political theory which will be developed more extensively in Chapter 2 to ground the RPA: an understanding of substantive justice as recognition. Moreover, the section provides a brief account of the guiding methodology of this book in the form of a ‘real world’ philosophical approach.
Social Justice through Recognition
As discussed earlier, distributive or redistributive justice relates to injustice grounded in economic structural inequality. Though relevant to criminal law as a public institution, the tools of criminal law are not necessarily equipped to respond to distributive injustice directly, beyond calling attention to it.Footnote 153 If we are to understand justice as participation (as Duff alludes to earlier in a republican, liberal democratic sense), a more fitting account of the concept is needed. Indeed modern liberalist discourses have moved on,Footnote 154 with contractarianism largely supplanted by a rights-based framework.Footnote 155 In this context, at the least controversial level, those who offend are deemed to be entitled to political rights.Footnote 156 Such rights amount to ‘the legal vehicle for formulating and pursing claims to justice’ both in EuropeFootnote 157 and beyond,Footnote 158 and are most commonly recognised in the criminal law through the requirements of due process.Footnote 159 The rights-based approach, however, is not without criticism when related to justice.Footnote 160 For example, Sen points to its lack of intellectual substance,Footnote 161 and Knijn and Lepianka reference difficulties around deciphering the moral grounds that are deemed to grant protection through rights.Footnote 162 Consequently, such discourses have evolved towards an interpretation of rights as promoting positive freedoms,Footnote 163 which are concerned with ‘enabling people to pursue their own vision of the good life’.Footnote 164 This capabilities approach to understanding justice has gained momentum, and though more obviously applicable to the criminal law, Chiao’s efforts aside, little progress has been made in applying it to this space. And so, criminal law lags behind with its view of the responsible agent, because when retributivism is foregrounded, a person who offends tends to have their claim to justice diminished and there is a sense that they are less entitled to a good life.
Nancy Fraser’s concept of justice offers more potential to meet the challenge facing the construct of personhood at the heart of the criminal law. Fraser frames the measure of justice as ‘parity of participation’, that is, the condition of being a peer, of being on a par with others, of standing on an equal footing’ [emphasis in original].Footnote 165 Her understanding of participation requires a multidimensional concept of justice, with three distinct though interlinking components – redistribution, representation, and recognition – that may be applied to particular sites in order to address real-world injustice.Footnote 166 Redistribution is considered earlier in the chapter, and representative justice speaks more directly to parity of political participation relating to inclusion and equality of democratic expression.Footnote 167 Rather, justice as recognition may be of greater use to advancing justice in criminal law, because this particular facet speaks more fundamentally to the status of the person relative to others. As Lepianka and Knijn note, ‘[r]ecognitive justice implies absence of cultural domination, marginalization in the public space, cultural and social invisibility, and disrespect and disparagement in everyday life’.Footnote 168 Though each sphere can be analysed on its own merits, the forms of justice can interrelate to either reinforce or to undermine the other. For instance, as Lepianka and Knijn note, ‘just representation might be contingent on “just” recognition and/or “just” redistribution of resources that enable participation’.Footnote 169
The potential of recognition, as Fraser and others present it,Footnote 170 lies in the fact that it allows us to think about those who offend as a collective not so much in an economic or production context, as with distributive justice, but by ‘relations of recognition’ who are ‘distinguished by the lesser esteem, honor, and prestige they enjoy relative to other groups in society’.Footnote 171 Recognitive justice is therefore applicable to those who experience ‘pervasive effects of institutionalized stigma’.Footnote 172 Its absence is characterised by Fraser as ‘misrecognition’ or ‘unrecognition’, which may be framed as a form of ‘status subordination’ which is sensitive to a person’s social context, as opposed to their individual psychology. Thus, for Fraser, misrecognition can amount to
being denied the status of a full partner in social interaction and prevented from participating as a peer in social life as a consequence of institutionalized patterns of cultural value that constitute one as comparatively unworthy of respect or esteem.Footnote 173
It is the institutionalisation of this form of misrecognition that leads to a lack of parity of participation in society, notwithstanding the effect on the person. Thus, misrecognition in a justice context relates to ‘externally manifest and publicly verifiable impediments to some people’s standing as full members of society’. Fraser adds, ‘such arrangements are morally indefensible whether or not they distort the subjectivity of the oppressed’ [emphasis in original].Footnote 174 As such, the proposed UPD represents the potential development of both the political representation and cultural understanding of the person who the state condemns, reflecting Fraser’s recipe for addressing recognitive injustice as ‘upwardly revaluing disrespected identities’.Footnote 175 Targeting the site of condemnation, in particular, is in line with Fraser’s bespoke approach to remedying injustice in a recognition context. Fraser sees remedies for injustice as being dependent on the nature of the harm in the relevant site: ‘In every case, the remedy should be tailored to the harm.’Footnote 176
As a key feature of the RPA, this book draws on recognitive justice in particular to frame the experience of many who offend as a form of injustice through a failure to acknowledge agency as inherently, situationally, and (in the context of many who offend), pathogenically vulnerable.Footnote 177 Indeed, vulnerability theory grounds a call for recognitive justice in this context, as it highlights the contingent nature of personhood, bringing a fresh legitimacy to doctrinal reform that seeks a closer account of the criminal law’s subject as a real person.
This endeavour is underpinned by the adoption of real-world philosophy as a guiding methodology as discussed in the next section. As such, recognition and vulnerability in the context of the RPA may be understood not as an overarching theory of justice, but rather as a diagnostic tool for the identification of sites and claims of injustice, with a view to redressing those claims and advancing towards a more socially just experience for the relevant collective.
A ‘Real-World’ Approach to Recognising the Person
As discussed earlier, discourse has largely been framed as a case of ‘ideal versus non-ideal’ approaches to political philosophy theorising; however, the two approaches are not necessarily irreconcilable. For example, the ETHOS project which examines justice across Europe,Footnote 178 following Jonathan Wolff, endorses a ‘real-world political philosophy’, which it describes as follows:
Instead of giving the ideal-theoretical articulations of a theory of justice a theoretically prior place … this approach starts with ‘real world’ investigation into manifest injustices before theorizing the appropriate responses to address those injustices using the tools of political philosophy.Footnote 179
On this reading, justice is not simply an ‘abstract moral ideal that is universal’; rather, it is a ‘re-enacted and re-constructed “lived” experience’.Footnote 180 So, while recognising the significance and sentience of the individual, it also describes the experience as ‘embedded in firm legal, political, moral, social, economic and cultural institutions that are geared to giving members of society what is their due’.Footnote 181 Real-world methodology also recognises the place of ideal theorising, when it is used not simply in utopian terms, but rather as a set of reasoned principles that helps us to better understand what makes real-world choices advance or hinder justice.Footnote 182
The core features of the real-world approach are its partial and pluralistic nature, and its comprehensive and multi-perspective scope. The approach is partial in that it cordons off particular sites or ‘social mechanisms’ (such as condemnation) for evaluation in a justice context, without the need to construct a new idea of a just society, or just legal system, in toto.Footnote 183 Instead, it focuses on one particular potential site, and can consist of an analysis of how social mechanisms in that field can bring about injustice.Footnote 184 The benefit of partiality is that advancing justice at the point of condemnation does not require a scuffle with the behemoth.Footnote 185 Rather, we can engage with a relevant principle, and evaluate the aspects of it that lead to injustice, feeding our findings into new ways of thinking about how to advance justice in that space. As Fraser writes:
[A] theory of justice cannot, and should not, provide a comprehensive account of the overall goodness or badness of society. Rather, it should allow us to evaluate social arrangements from the perspective of one limited, but extremely important angle: how fair or unfair are the terms of interaction that are institutionalized in the society?Footnote 186
The plurality of the real-world approach lies in the fact that more than one claim to justice can exist in a particular site, it is not necessary to provide a ‘pure’ account.Footnote 187 Thus, the social justice argument advanced here, which points to the introduction of a UPD, can sit alongside arguments like that of Morse and Brink who take a more moralistic path to justify transformation.Footnote 188 The comprehensive scope of the real-world approach permits consideration of the state of affairs that arises from the mechanism under scrutiny to be taken into account in making an evaluation of injustice.Footnote 189 As Sen notes, ‘we need to take stock of the social states that actually emerge in order to assess how things are going and whether the arrangements can be seen as just’.Footnote 190 Therefore, the (potential) outcomes (conviction, punishment, responsibilisation, collateral consequences etc.) of culpability evaluations are relevant to our assessment of it for the purposes scrutinising its social justice credentials, as explored to a greater extent in Chapter 4. Further, the multi-perspective reach of the real-world approach allows for consideration of the evaluation of injustice from a number of perspectives, including agentic, institutional/structural, and relational, generating richer material to inform responses.
In summary, the real-world method involves a two-step problem-solving approach: first, the diagnosis of injustice, and, second, the use of theory as a tool to help cultivate reasoned principles to assist in better understanding and responding to those injustices.Footnote 191
The Site of Injustice
Though social justice has the potential to apply to all aspects of the criminal process, this book is concerned particularly with its application to the exculpation stage because it is material to condemnation. As noted earlier, retributivism has what Brink terms ‘considerable intuitive appeal’ at the point of culpability evaluation, in particular justifications and excuses.Footnote 192 Brink frames excuse as the inverse or ‘flipside’ of culpability or responsibility in criminal jurisprudence, just as justification pertains to wrongdoing.Footnote 193 Condemnation matters because it is the epicentre of the penal equation, and is so heavily aligned with retributivism that it reinforces policies and strategies that can lead to experiences of recognitive injustice. The realm of excuse is critical to the terms of engagement as between the state and the agent because it is designed to provide a platform of communication in establishing the final stage of criminal responsibility, for example, in facilitating a denial of culpability, or in seeking to provide an explanation for behaviour. In reflecting its significance, Moore describes excuse as ‘the royal road’ to responsibility.Footnote 194 However, Brink’s rejoinder reminds us that this particular route is ‘a two-way street’.Footnote 195 Accordingly, my claim here is that, in blaming people, the state ought to attend more closely to the voice of the defendant as the less powerful party to the interaction because the outcome speaks to their moral worth. In justice terms, the criminal law, as public law, owes a responsibility to its citizens who offend to recognise the vulnerability of their agency at the condemnation stage. At present, excuses are underpinned by a narrow, compatibilist view of personhood which fails to facilitate the adequate consideration of potentially significant information pertaining to the accused’s vulnerability, which can bear on determinations of culpability. This book identifies the potential of the existing doctrine of partial excuse as a means of facilitating consideration of such information, leading to the proposal for a UPD.
Conclusion
Because the threat of condemnation is the most virulent means of maintaining (or being seen to maintain) social order, and because a retributive paradigm underpins our understanding of condemnation through the ‘penal equation’, our sense of justice in criminal law appears co-opted by a strong retributive force based on a narrow account of rational agency. As a result, the criminal law, as a public institution, remains passive to the social injustice experienced by many who come before it, and to the reality that social injustice contributes to criminogenic patterns of behaviour. Establishing that the criminal law has a duty to the person who offends that requires it to protect, as well as hold responsible, makes room for a conversation about how it relates to that person at an important part of the penal equation. Drawing on substantive and methodological developments in political theory facilitates incremental change at discrete sites of diagnosed injustice. Thus, with the criminal law awake to its duty, a pathway is forged for a Real Person Approach to blame, which recognises agency as vulnerable and which manifests in doctrine through the UPD.
