Why Blame?

Ever since her first book, State Punishment, a recurring theme of Nicola Lacey’s scholarship has been a hesitancy about blame—what it is for, how to assign it, and whether to let it take hold. In her later work, Lacey has disaggregated the problem of blame from the problem of responsibility, and explored ways in which responsibility could be assigned without blaming. Her suggestions have centred on the possibility of forgiveness. I admire Lacey’s humane instinct in urging us to do less blaming. However I do not think that this instinct is all that is at work in her recurring doubts about blame. For it is possible to embrace forgiveness while holding those one forgives to be blameworthy? Arguably, indeed, forgiveness presupposes blameworthiness. The deeper puzzle is about blameworthiness itself. What is it for? Why does it matter? What is its place in the architecture of the human condition? It is no answer to say that blameworthiness matters because responsibility matters. There is responsibility without blameworthiness, and responsibility matters for reasons that have nothing to do with blameworthiness. Nor is it an answer to say that blameworthiness matters because blaming matters. Only when one works out why it matters that someone is blameworthy does one begin to show why people should ever do any blaming. Or so I will argue. I will suggest that the importance of blameworthiness is genuinely mysterious. That position is associated with Bernard Williams. I think that some of Williams’ worries are shared by Lacey. However, I will suggest that, in light of my remarks, they are not exactly the right worries.

Responsibility and Explanations of Rape

This chapter examines the psychological function and consequences of responsibility ascriptions in relation to the crime of rape. Section 1 draws on recent work in the philosophy and science of causal cognition to argue that responsibility ascriptions, like explanations, are tethered to interests and perspectives: descriptive and prescriptive background norms affect not only what counts as a satisfying explanation of why something happened, but who is singled out as the bearer of responsibility for what happened. Section 2 draws on in-depth qualitative interviews with convicted rapists, together with empirical studies of the attitudes and factors that result in ‘victim-blaming’ within the general population, to detail the descriptive and prescriptive norms of rape culture. Section 3 brings these discussions together. Given the pervasive influence of rape culture norms, introducing a woman’s violation of any of them in court can serve to (implicitly or explicitly) focus attention on those violations as causally salient and explanatory of what happened, and hence on her—as opposed to him—as the bearer of responsibility for what happened. The psychological function and consequences of responsibility ascriptions may therefore contribute to the grotesque and persistent failure of the courts to convict and appropriately sentence rapists.

Responsibility, Criminalization, and Political Economy

One of the most important and distinctive themes of Lacey’s recent work has been the analysis of penal practices from the perspective of political economy. However, it is arguably the case that ‘political economy’ is primarily viewed as a dimension of the context in which the criminal law develops rather than as a method of legal analysis. In this chapter I explore the meaning and critical potential of the concept of political economy—how it is used by Lacey, the different traditions that she draws on—and what the perspective and theory of political economy contributes to our understanding of criminal law. I seek to deepen the relevance of political economy to the analysis of criminal responsibility by exploring how the development of the modern conception of English criminal law in the early nineteenth century was itself shaped by contemporary understandings of political economy. Most historical work on the development of the modern criminal law has focused on the impact of utilitarianism to show how changes in penal laws and institutions were linked to new efforts to shape individual conduct in society. However, equally important to the intellectual and political culture of the early nineteenth century were understandings of the new ‘science’ of political economy. This chapter explores the ways in which theories of political economy shaped the modern criminal law in this period and thereby to open up new possibilities for exploring connections between criminal law, criminal responsibility, and political economy—and thus for critical criminal law theory.

In Whose Interests?

This chapter will argue that the core justification for the United Kingdom’s ‘blanket ban’ on assisted suicide—namely that it is necessary in order to protect ‘the vulnerable’—has tended to obscure two other important sets of interests. First, it has served to marginalize the interests of patients who are not vulnerable, and who have been used to exercising considerable control over their lives. There is evidence from countries which have legalized assisted dying that it is this non-vulnerable group of patients who are its principal users. Second, the core justification for the ‘blanket ban’ has deflected attention away from the interests of the medical profession itself, which in the United Kingdom has a long tradition of organized and powerful opposition to assisted suicide.

Taking Guilt Seriously

This chapter identifies two kinds of guilt and considers how the retributive theory of punishment sits in relation to them. It draws on two lines in psychoanalytic theory, Melanie Klein’s object relations approach, and the Hans Loewald and Jonathan Lear development of the later Freud’s structural theory in terms of an ontology of love. The two kinds of guilt may be termed ‘early’ and ‘mature’, where the former entails a punitive and persecutory attitude of condemnation to a perpetrator, the latter an account which emphasizes restoration or atonement through making good. Considering Jeffrie Murphy’s account, I argue that the problem for retributivism is that there is at least an historical logic in how it is deployed in modern society, in terms of an early guilt which tends to the punitive and persecutory. An alternative guilt that is restorative and atoning might inform another retributive theory, one that was mature in its understanding of how serious violation should be addressed.

Introduction

I had the pleasure and privilege to be guided by Nicola Lacey during my doctorate in the Law Department at the London School of Economics. My supervisor became my friend and over the years a mentor, a sponsor and an ally. Together with my co-supervisor, Damian Chalmers—who introduced us—she not only helped me to excavate und unwind the entangled relationship between law, politics, and society but also to navigate academia, a space that can be both lonely and precarious for a black woman. At both a personal and professional level, she is an excellent role model and image of who and what an academic can be. One contributor put it well:...

The Characters of Criminal Law

Criminal law theorists necessarily start their theorizing with some idea of their subject. The dominant figure in the canon is the criminal actor understood as a freestanding individual, removed from his group affiliations. I call him Model 1. Then there is the demographic or social model of the criminal person. Here our disciplinary characters are treated as members of a population that have certain propensities. Those who subscribe to this second model tend to be thinking of real historical and social people, located in places and contexts, as well as people with bodies and sexes. I call this Model 2. Most criminal laws operate on the basis of a Model 1 person, with an individual without social characteristics or context. But occasionally these demographic concerns are directly expressed in criminal laws. The English criminal law of rape is one such law. It still names men as the people of concern. The English law of rape therefore poses a challenge for Model 1 individualists, requiring them to make some sense of this population-specific law. So, when individualists write about the nature of rape and its law, as they often do, it is highly revealing of their thinking about their own criminal law character. Here I consider the work of legal philosopher John Gardner, who has written influentially about English rape law, to discover what an individualist does with a law which acknowledges its population of concern. What happens when the two paradigms conflict?

Searching for Criminal Responsibility

In her latest book, In Search of Criminal Responsibility, Nicola Lacey distinguishes four ‘more or less discrete ideational frameworks for the understanding of criminal responsibility’, focusing respectively on capacity, on character, on outcomes, and on risk; she traces the rise and fall (and rise) of each of these conceptions, and the complicated and shifting relationships between them. These are, she thinks, ‘competing’, ‘philosophically inconsistent conceptions of responsibility’, although they can sometimes ‘coexist’ with each other in the historically messy and conflicted practices of criminal law. This chapter responds to Lacey’s claims about the changing conceptions of responsibility that she finds in English criminal law: not to deny those claims, but to argue that they need to be qualified in the light of a more complex conceptual schema than she provides. It discusses just what these changing ‘conceptions of responsibility’ are conceptions of, and just what it is that changes between them; and it argues that the final change, which Lacey describes as the development of a risk-based conception of responsibility and as marking a ‘resurgence of character-based mechanisms’, is best understood not as a change in the conception of responsibility, but rather as an abandonment of responsibility (answerability), in favour of kinds of liability that are detached from responsibility.

‘Technologies of Responsibility’

In her important monograph, In Search of Criminal Responsibility, Lacey explores changing relations between individual and state and charts the history of growing state ‘confidence in the possibility of shaping the habits and dispositions of citizenhood’ through the criminal law and other legal measures. She concludes, ‘we are seeing not so much a replacement of one paradigm of responsibility by another, but rather an accumulation of conceptions or “technologies” of responsibility.’ This chapter considers these controversial new hybrid legal orders such as the ASBO and its successors with which the state seeks to instil habits of respectable citizenship and to secure civil order. These diverse powers engraft new techniques of ‘responsibilization’ on to existing criminal laws, designed to police ‘irregular’ citizens who occupy precarious places at the margins, such as youth, those engaging in anti-social behaviour, the poor, and the homeless. Arguably these technologies do not signify the growth of state confidence so much as its resort to regulatory fixes to intractable problems of governance. It concludes by considering the implications of these developments for the attribution of responsibility both in and outside the criminal law.

Punishment and Comparative Political Economy

This chapter is an exposition and critical assessment of Nicola Lacey’s work on punishment and comparative political economy. It traces the trajectory of Lacey’s work, describing how she was the first to bring the ‘varieties of capitalism’ framework to bear on the central questions of comparative penology and how she then proceeded to use an expanded version of the framework to develop an original explanation of American penal exceptionalism. The chapter then seeks to assess Lacey’s work by examining the theoretical fit between her political economy framework and the institutional characteristics of systems of criminal punishment, paying particular regard to the causal mechanism hypotheses that underpin her account.