The Criminal Law's Person

Claes Lernestedt, Matt Matravers, Claes Lernestedt, Matt Matravers

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509923755
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's person constructed, by whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives.

1

Introduction: The Criminal Law’s Person

CLAES LERNESTEDT AND MATT MATRAVERS

This volume brings together an international group of academics to engage with the criminal law’s person from a range of disciplinary perspectives. The main, but not exclusive, focus of the essays that follow is on various aspects of what is described as the criminal law’s general part, containing (the more general of) the rules for ascription of responsibility. This is not because there are no interesting issues to be discussed regarding the construction of the individual in the special part of criminal law. On the contrary: the special part’s rules, that regulate various parts of life (sexual relations, property, etc), rest on ideas and points of departure regarding how the person functions – what could and should be demanded of him or her, etc – all be it that such ideas are perhaps more visible in some areas of the law than in others. Our focus on the more general issues regarding the ascription of responsibility (and thus the general part) is not because the special part lacks interesting problems in this sense; it is instead because it would be too much for a single volume to try to tackle both.¹

For the same reason, the volume is mainly concerned with the person as the subject of criminal regulation, as the accused, and sometimes as the convicted. There are of course many other persons in the criminal law – for example, victims, lawyers and judges – and these categories are not mutually exclusive when it comes to actual persons, but they are not the main focus of the essays that follow.

The cover of this volume is of the ‘Trial of a sow and pigs at Lavegny’. According to Chambers’ Book of Days, the sow and her six piglets were put on trial in 1457 for the murder and partial consumption of a child. The sow, it is said, ‘was found guilty and condemned to death; but the pig[let]s were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child’.²

The picture, of course, is absurd to us and perhaps invokes thoughts of the advance of enlightened, rational, thinking. Today we know, or at least we agree, that it is inappropriate to hold non-human animals criminally responsible.³ They are deemed to lack something, or perhaps many things, that we believe to be necessary for responsibility. Moreover, when it comes to human beings – to the (criminal law’s) person – we (or at least most of us) agree that, at least in theory, it is the characteristics, capacities, etc, of this entity that allows society to have a system of criminal law: a system that communicates the message that certain things should not be done; threatens those who break the rules with punishment (ie, with various kinds of burdensome treatment, designed precisely to be burdensome);⁴ actually inflicts such punishments on concrete individuals of flesh and blood; blaming them for what they have done, and furthermore through this, as a kind of by-product, stigmatises not only the act but also the actor for having committed the crime. Although it is regularly said that criminal law concerns itself with ‘acts, not persons’, persons are the ones who commit the acts and even if the criminal law, or moral, theorist might say that ‘it is not you qua person we are blaming, it is what you did’ such distinctions tend to collapse – particularly in the eyes of the public – when the person is convicted.

Moreover, the stigma brought about by a conviction does not necessarily disappear or even substantially fade away when the individual in question has served his or her sentence. This is particularly true for certain kinds of crimes (such as possession of child pornography). The afterglow of a conviction is often extended, in various formal as well as material senses, for the rest of the life of many of those who have been punished. Even if he or she has served the sentence, something which in the best of worlds would mean that the person ‘has paid their debt’ to the criminal law system,⁵ this is not the case regarding other limbs of society, public as well as civil. For example, depending on what (kind of) crime was committed the conviction might effectively prevent the person from getting certain kinds of jobs or from accessing certain state services.⁶

Turning to more material sides of the potential afterglow, the ‘political forgiveness’ that could be said to be part of the communication between society and the convicted and punished individual is a shallow, formal and ritualised one,⁷ whereas the reactions of the victim(s) cannot be expected to follow a similar pattern. Furthermore, society has little or no standing to demand from victims of crime that they follow the state in forgiving.

This reflects an important, and more general, point. The state, and society as whole, are not, should not behave like, and should not be looked upon as being, persons engaged in interpersonal relations. This means that discussions regarding what the state can, should and may do, ought to be grounded in political not moral philosophy. This means, furthermore, that moral philosophy is of limited application when it comes to how society and the state should behave in relation to certain matters such as the proper moral and emotional attitude to be shown towards someone who has completed his or her punishment.⁸ What is required from society and the state is a certain kind of ‘shallowness’. We return to this below, as well as to other aspects of what it means for the state to relate to persons in a ‘political’ way.

We are not claiming that the features of the criminal justice system briefly mentioned above are necessarily unjustified or illegitimate. What we do claim, though, is that being convicted and punished for a crime is not, and should not be, an insignificant thing. A great deal is at stake, both in an individual case concerning a particular person accused of a crime, and when considering the overarching question of the proper (justified, permissible, etc) use of the criminal law in general: its targets, structure, contents, sanctions, etc. What follows is that a great deal is also at stake when it comes to how the system of criminal law sees the person, or to put it another way and for reasons that will be developed shortly, how the criminal law’s person is constructed.

Putting the criminal law to one side for the moment, the idea of ‘a person’ is not, of course, uniform across domains of human life any more than it is across academic disciplines. Depending on what area of life and/or society is in focus, and depending on what questions are posed, the conception of the person will differ. In economics we find homo economicus, in politics and sociology, the zoon politikon, and in psychology a plethora of persons across psychotherapy, cognitive and evolutionary psychology, and so on. There is also, of course, the law’s well-known, and well-contested, reasonable person (formerly known as the reasonable man).⁹

Perhaps with sufficient thought we might agree that there is some kind of core to be found when we discuss what a person is, but such a shared core will most likely not be able to move much beyond basic distinctions such as (1) distinguishing persons from other kinds of entities, and (2) defining when and where one ‘person-entity’ spatially ends and another one starts. The further one moves into sub-areas of life, society, science and law, the greater the differences between their ‘persons’ will often turn out to be. Moreover, as the conception of the person becomes more complex, so it also becomes more contested, and many of those involved in such contests are unlikely to be disinterested ‘truth-seekers’.

Returning to the criminal law and the construction of its (responsible and non-responsible) person, there is perhaps a deceptive sense in which it might be claimed that there is an agreed ‘core’. For a start, the criminal law’s person is not a pig, but an entity that possesses particular rational capacities, etc. However, even if there were such a core – something denied, for example, by moral responsibility sceptics – it requires a great deal of fleshing out: which rational capacities, possessed to what degree, being only two of the issues that need to be resolved.

In reality, the fleshing out of various aspects of the criminal law’s person is to a large extent shaped by varying interests. Above, we said that a great deal is ‘at stake’ in the criminal law and, indeed, it is not unreasonable to think of the advocates of various competing interests revolving around the construction of the criminal law’s person as ‘stakeholders’ both in the sense that the issues are tremendously important, and that many of the stakeholders are agenda-driven: their interests lie not in the discovery of the ‘truth’, but instead in trying to get (for one reason or another) their desired outcomes in relation to the criminal law. Such ambitions are not necessarily bad (we return to this below). The point is just that the outcome of the battles between various stakeholders’ views is, to a large extent, what in practice shapes the criminal law’s person as that person comes to life in, for example, legislation, enforcement, policing and court practice.

I.CRIMINAL JUSTICE: POLITICAL NOT METAPHYSICAL

Criminal law is a social construction embedded in wider social practices of criminal justice and public policy. These practices rely on institutions. Thus, the subject (in all senses) of the criminal law is a matter of choice. One society might choose to criminalise conduct that significantly contributes to climate change, and another might not. One society might choose to allow the criminal prosecution of corporations, and another might not, and so on.

The fact that these things are matters of choice raises at least two questions. First, who gets to choose or to influence the choice? Second, what constrains or shapes that choice not in the social science sense of understanding the processes by which decisions are made, but in terms of the underlying theoretical and normative legitimacy and coherence of the enterprise? Who should get to choose, and based on what might those choices be made?

These questions will recur in this Introduction and in the chapters that follow. Our interest in both is not that of the descriptive political scientist. That is, ‘who gets to choose?’ might be addressed by looking at the legislature of a given society, its lobbying rules, campaign financing regulations, at the ownership and influence of the media, at who votes in elections, and at other factors of this kind. Such an enquiry would be interesting and important, but it is not the one pursued here. Rather, the issue for us is to understand what follows from the fact that the criminal law’s person is formed as a theoretical and practical construction. As we note above, one might think of the criminal law’s person in its various aspects as an artificial entity surrounded by, and indeed created by, various stakeholders – amongst whom are politicians, judges and the legal profession, academics and their respective disciplines – all vying for influence in shaping the criminal law’s person and in excluding, or diminishing, the powers of others to do the same (or joining forces – creating alliances, unholy or otherwise – all in the quest for influence).

This ‘battle’ is reflected in addressing the second question. If one society can choose to demarcate a corporation as a legal person that can stand trial, what is to stop another doing the same for a pig? Again, our interest is not in answering this question as political scientists – ‘the legislature would never pass the Bill to criminalise swine’ – but as (in various ways) criminal law theorists concerned with the justification, legitimacy and coherence of the practice(s).

That is, if someone were to propose reintroducing non-human animal trials, consider the types of arguments that would follow in response. They would not just, or even primarily, be of the kind that the proposal will not be successful because Parliament would not permit it. Rather, they would encompass arguments about the nature and purpose(s) of criminal law and of its justification and legitimacy. Those arguments would be made by, and (whether intentionally or not) on behalf of interests guarded by the various stakeholders mentioned above. Legal theorists with a moral philosophy background, philosophers of action, political philosophers, lawyers, judges, forensic psychiatrists, psychologists, metaphysicians and others, will make certain types of arguments and try to exclude (or, in some matters, align with) other types.

In other words, the construction of the criminal law’s person is intimately related to the arguments that justify and set limits on the criminal law itself and these arguments, too, reflect the vying of stakeholders to secure their views and influence. In the next section, we turn to this issue and to the ways in which the concepts of blameworthiness and responsibility frame, and obscure, the debate.

II.THE CRIMINAL LAW AND THE CRIMINAL LAW’S PERSON(S)

One – perhaps the primary – function of the criminal law is to regulate the conduct of persons. Moreover, the criminal law does not merely regulate but is part of the apparatus of the state the job of which is to shape the ways in which people behave in ‘pro-social’ ways.¹⁰ In this, human beings and human communities are not unique. For example, great apes have systems of ‘punishment’ to reinforce communal behaviour.¹¹ However, human systems of regulation are subject to a distinctively human demand: that they can be justified. That is, insofar as we use deliberately imposed burdens – so-called ‘hard treatment’ – we need a justificatory structure and for the most part that structure currently depends on blameworthiness. ‘Blaming’ is key to the distinctive way in which the criminal law is said, at least in theory, to shape behaviour.¹² But, for the practice of blaming to be acceptable – to meet the demands of justification – we may blame, in the criminal law, only those who are blameworthy; only those who, in some sense, deserve to be blamed.¹³

Before considering this further, it is worth saying three things about this overarching justificatory claim. First, there is a danger in taking it at face value. It is far too easy to become complacent in the face of the burdens of punishment and the idea that only those who are blameworthy are punished can sustain that complacency. This is in part because the claim is ambiguous between blameworthiness as ordinarily understood and blameworthiness as understood in the criminal law. For example, we impose criminal sanctions on people whom many would not regard as blameworthy when using strict liability, although some in the legal and criminal law professions may disagree.¹⁴ Second, blame can be understood in several ways – instrumental,¹⁵ therapeutic,¹⁶ censuring¹⁷ and others – and the relation of blame to blameworthiness is not straightforward. Third, and as discussed below, the idea of ‘blameworthiness’ can be understood in a variety of ways some of which are very shallow and others muc...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• List of Contributors
• 1. Introduction: The Criminal Law’s Person
• 2. The Criminal Law’s Various Persons
• 3. The Criminal Law’s Person and Normative Elements in the Legal Definition of Excusing Circumstances
• 4. Standard-Setting versus Tracking ‘Profound’ Blameworthiness: What should be the Role of the Rules for Ascription of Responsibility?
• 5. Attributability and Accountability in the Criminal Law
• 6. In Search of Criminal Law’s Person
• 7. Victims Who Victimise: Guilt in Political Theory and Moral Psychology
• 8. Responsibility Beyond Blame: Unfree Agency and the Moral Psychology of Criminal Law’s Persons
• 9. Implicit Bias, Self-Defence and the Reasonable Person
• Index
• Copyright Page