Blaming people for doing wrong is a necessary and normative endeavour that brings with it unequivocally negative, material consequences for those people, their loved ones, their communities, and wider society. Often, the real harm caused by this exercise is overlooked, actively discounted, justified as a necessary evil, or even lauded, in light of the scale or nature of the wrongdoing, the political objectives of the day, or by the facelessness that follows low-level, persistent offending – the kind that keeps our prisons full. This book has sought to rouse the criminal law, as a form of public law, to its duty to protect the person who offends as penal subject, which precedes its duty to hold them responsible for culpable wrongdoing. It has argued that to protect is to advance social justice, and it has named and explained the form that justice must take at the heart of the moral conversation between state and person within the criminal law. In proposing a Universal Partial Defence (UPD), then, the book has sought to shift the boundaries of blame to facilitate a more authentic account of personhood as the basis for criminal responsibility attribution.
It is hoped that aspects of the book spark curiosity about how we might identify, and test, other seemingly entrenched boundaries set by the criminal law, using social justice as a guiding framework for reform. As a springboard for further dialogue, the book concludes with a summary of its three core contributions to existing criminal law scholarship across paradigm, theory, and doctrine, respectively, through the development of the Real Person Approach (RPA), a bounded causal theory of partial excuse, and the UPD.
The Real Person Approach
At a paradigmatic level, the book contributes to existing critical criminal law theory that seeks to expose and respond to the consequences of the present dominant understanding of personhood in law. Scholars argue that the abstracted and isolated responsible subject presents a narrow account of rational capacity and fails to reflect the enmeshed nature of the individual within their moral and social context. This paradigm of personhood suffuses principles of criminal responsibility and plays out in sharp relief at culpability evaluation, through the combination of an overly restrictive excuse doctrine, and a failure to recognise the scalar quality of blameworthiness. The RPA proposed in this book stands with scholarship that pushes against the paradigmatic status quo and calls for the responsible subject to reflect a more authentic and relational view of personhood, whether that is based on arguments relying on social psychology, clinical psychology, feminist critique, or on a combination of legitimising approaches. The proposed framework stands out, however, on the basis of its social justice credentials, its feasibility, and its guiding methodology.
In developing a fuller account of personhood, the RPA perceives scientific findings and normative calls for social justice as mutually reinforcing, in that greater knowledge of human and social psychology, for instance, can work towards emphasising the commonality of the human condition, and therefore offset hostile responses. As such, in its diagnostic capacity, the framework relies on evidence from mind sciences to expose the propensity to over-blame the individual at the pre-verdict stage owing to a bounded view of personhood exemplified by a restricted desert calculus and a lack of recognition of degrees of blameworthiness. This argument alone could underpin the requirement for a UPD. However, the RPA goes further to legitimise the proposal in order to challenge assumptions that stand in the way of progress. Accordingly, 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, as a form of social injustice.Footnote 1 In its normative capacity, then, the RPA draws on vulnerability theory and recognition theory in order to provide a fuller account of personhood that reflects the inherent, situational, and pathogenic vulnerability of the individual subject to state blame.Footnote 2 Once identified, these vulnerabilities ground a recognitive justice response from the criminal law; a response that fosters individual autonomy through mechanisms that promote order through cohesive, as opposed to divisive, principles, practices, and concepts. In the context of culpability evaluation, the RPA first calls for acknowledgement of the ways in which the person who has committed a culpable wrongdoing may have suffered impairments of their autonomy (impairments that flow from their vulnerabilities, including their position as a penal subject), and second, for a response to such vulnerabilities in ways that (might) enhance or rebuild personal autonomy. In so doing, the book makes a fresh contribution to literature that seeks to offset punitive responses and cultivate a criminal law that maintains order in ways that guard against provoking psychological responses that pull us apart, rather than bring us together.Footnote 3
Further, the structure of the RPA brings a feasibility and practicality that can be put to use by existing and future calls for relationality within the criminal law. Briefly, the RPA is conceptually feasible because it can be reconciled with the current dominant approach to culpability evaluation. For, it is designed with a view to supplementing, rather than overriding, the present construct of rational agency to arrive at a more authentic account of personhood that still coheres with a liberal democratic framework. Accordingly, it does not abandon retributivism, as the hegemonic paradigm of responsibility, but rather clarifies that a moderate account of retributivism can work alongside a recognitive justice response in order to ensure the survival of personal accountability for wrongdoing, but in a way that tempers punitive excess at this site. This feasibility to work with, rather than beyond, the present law is reflected further in the RPA’s engagement with, and reinvigoration of, the principles of proportionality and parsimony, and its use of existing doctrine, the partial defence of diminished responsibility, as a template for the UPD. At a paradigmatic level, then, the RPA brings a more grounded approach to calls for change than those arguments that work from the basis of more drastic rejection of central features of responsibility.Footnote 4
Finally, the book is informed by a real-world philosophical approach, such that the RPA is designed to identify and respond to discrete sites of injustice with a view to advancing social justice incrementally, as opposed to arguing for wholescale change. This contribution is significant because it uses the tools of theory to work upwards, from current practice, to shape concepts that reflect the nuance of how the law operates in reality. In addition, the structure of the RPA has been crafted with transferability in mind. Its three-feature format (vulnerability, recognitive justice, and feasibility) lends a practicality to the framework that could act as a toolkit for advancing social justice within other areas of legal doctrine, offering the potential to support reform beyond the excuse realm.
Bounded Causal Theory
A second core contribution of The Boundaries of Blame takes place through innovation in the field of excuse theory. In Part III, the RPA is applied to the doctrine of partial excuse with a view to extending the scope of the existing defence. Part of this universalisation project involves an expansion of the basis of a partial excuse to non-prescriptive conditions and circumstances, ensuring that no group of people are distinguished as ‘abnormal’, and so subjected to further misrecognition by the criminal law. A significant challenge to this claim is laid bare in the old battleground of determinism versus free will, where fears of absolute determinism have resulted in scholars turning away from causal theory as an explanation for excuse, resulting in a form of conceptual obsolescence.Footnote 5 To surmount this obstacle to greater recognition of circumstance as a basis of excuse, the book recognises the need for the criminal law to reconcile with the causal rationale. As such, Chapter 7 develops a conceptual compromise between causal theory and capacity theory, as a means of providing a more accurate explanation of the existing doctrine of partial excuse as it appears to operate in practice, and with a view to legitimising the UPD through the language of established excuse theory discourses. Accordingly, the bounded causal approach advances scholarship in this field, providing a novel way to conceptualise the doctrine of partial excuse so as to align with, rather than reject, the dominant capacity-based rationale. There is scope for further work to be done to develop and test this theory in respect of other forms of partial excuse.
The Universal Partial Defence
Finally, the proposal for a UPD adds to the momentum of a small but significant body of scholarship that recommends some form of general partial defence for the criminal law.Footnote 6 Though approaches may differ to a greater or lesser extent, in grounding the proposed UPD in a strong social justice framework, this book enhances the legitimacy of these proposals and signals that they are becoming increasingly pertinent in the interests of maintaining the integrity of the criminal law, not just in a moral sense, but in a political sense too. The UPD realises the ambitions of the RPA through the following means: expanding the excusing condition underpinning partial excuse to reflect the inherent vulnerability of personhood; expanding the basis of the excuse beyond condition to include circumstance in recognition of the situated reality of personhood; maintaining alignment with the dominant capacity-based approach to excuses; and, finally, fore-fronting the normative role of the jury as gatekeepers of the moral community. Finally, the UPD brings a novelty of approach to these discourses by recommending a general excuse that is non-prescriptive in defining the grounds for a defence,Footnote 7 and is closer in aetiology to the doctrine of diminished responsibility that has evolved across the jurisdictions of the UK and Ireland, rather than the more frequently relied upon US model.
To conclude, at a time when factious political messaging and interactions are threatening liberal democratic mores, it is hoped that the rich and varied works explored and relied upon in these pages, and the ideas that they have inspired, sound a note of optimism for the future of criminal law scholarship and, perhaps, beyond it.