The focus of this essay is on how we overcome the past by dealing with it. In this setting, the analysis is of the relationship between ‘moral transactions’ concerning blame, guilt, responsibility, apology and forgiveness and the possibility of transition away from states of trauma. The first section draws on previous work to set out a position on human love as the basis for an understanding of guilt and the ‘moral grammar’ of justice. The second section considers Martha Nussbaum’s claim (...) in Anger and Forgiveness that the idea of transition should be prioritized at the cost of a moral transactional analysis that would engage the moral grammar of blame, guilt, responsibility, apology and forgiveness. The latter is seen as potentially obstructing the transition to a better world. I suggest to the contrary there are grounds for thinking that a successful transition requires relevant moral transactions. (shrink)

In this wide-ranging interview Alan Norrie discusses how he became involved with Critical Realism, his work on Dialectical Critical Realism, and responses to it amongst the Critical Realist communi...

How does the human animal who thinks and loves relate to criminal justice? This essay takes up the idea of a moral psychology of guilt promoted by Bernard Williams and Herbert Morris. Against modern liberal society’s ‘peculiar’ legal morality of voluntary responsibility, it pursues Morris’s ethical account of guilt as involving atonement and identification with others. Thinking of guilt in line with Morris, and linking it with the idea of moral psychology, takes the essay to Freud’s metapsychology in Civilization and (...) Its Discontents. Two conflicting routes to guilt are noted in Freud, one involving internalisation of external anger to suppress destructive instincts, the other loving identification with others in the process of self-formation. This second route is developed through the psychoanalytic thought of Hans Loewald and Jonathan Lear. Following Loewald, the moral psychology of self-formation makes loving identification with others the root of responsibility, guilt and atonement. Following Lear, the moral psychology of guilt developed on these lines renders psychoanalysis part of a broadly understood philosophical project following Aristotelian and Socratic principles. Underlying Morris’s account of guilt is the possibility of ‘prospective identification’, understood as the moral and psychological ground of guilt and reconciliation. This is the rational core of criminal justice, which maintains an uneasy relationship with law’s ‘peculiar’ morality. (shrink)

Introduction: Natural necessity, being, and becoming -- Accentuate the negative -- Diffracting dialectic -- Opening totality -- Constellating ethics -- Metacritique I : philosophy's primordial failing -- Metacritique II : dialectic and difference -- Conclusion: Natural necessity and the grounds of justice : natural necessity as material meshwork.

The focus of this essay is on how we overcome the past by dealing with it. In this setting, the analysis is of the relationship between ‘moral transactions’ concerning blame, guilt, responsibility, apology and forgiveness and the possibility of transition away from states of trauma. The first section draws on previous work to set out a position on human love as the basis for an understanding of guilt and the ‘moral grammar’ of justice. The second section considers Martha Nussbaum’s claim (...) in Anger and Forgiveness that the idea of transition should be prioritized at the cost of a moral transactional analysis that would engage the moral grammar of blame, guilt, responsibility, apology and forgiveness. The latter is seen as potentially obstructing the transition to a better world. I suggest to the contrary there are grounds for thinking that a successful transition requires relevant moral transactions. (shrink)

The focus of this essay is on how we overcome the past by dealing with it. In this setting, the analysis is of the relationship between ‘moral transactions’ concerning blame, guilt, responsibility, apology and forgiveness and the possibility of transition away from states of trauma. The first section draws on previous work to set out a position on human love as the basis for an understanding of guilt and the ‘moral grammar’ of justice. The second section considers Martha Nussbaum’s claim (...) in Anger and Forgiveness that the idea of transition should be prioritized at the cost of a moral transactional analysis that would engage the moral grammar of blame, guilt, responsibility, apology and forgiveness. The latter is seen as potentially obstructing the transition to a better world. I suggest to the contrary there are grounds for thinking that a successful transition requires relevant moral transactions. (shrink)

This book addresses the retributive and "orthodox subjectivist" theories that dominate criminal justice theory alongside recent "revisionist" and "postmodern" approaches. Norrie argues that all these approaches, together with their faults and contradictions, stem from their orientation to themes in Kantian moral philosophy. He explores an alternative relational or dialectical approach; examines the work of Ashworth, Duff, Fletcher, Moore, Smith, and Williams; and considers key doctrinal issues.

Christian Smith’s To Flourish or Destruct is a thorough, sustained, and impassioned argument for what the author calls ‘critical realist personalism’. This is an ontologically based theory of the p...

What is law? How is legal responsibility defined? How does law reflect moral judgment? Why are law's definitions uncertain and conflicted? Basic questions for liberal law and criminal justice - what could they have to do with the forgotten historical figure of the Beautiful Soul? Starting from concrete legal issues, Alan Norrie develops a critical vision of law in its relation to morality and socio-historical context. Liberal law, he argues, is marked by splits and contradictions (antinomies), signs of something (...) missed. Traced historically, such conflicts can be read today in law's treatment of legality and justice, judgment and responsibility. A critical understanding must also be self-critical. From splits in law, Norrie moves to the split in critique: between its socio-historical and ethical forms. Drawing on critical realism and deconstruction, on the dialectics of Hegel, Adorno and Bhaskar, he argues for a form of critical thought that is at once historical and ethical. Thinking critically about critique finally leads to the Beautiful Soul, and its unexpected relation to law. These essays will be of interest to academics and advanced students of legal theory; criminal law, criminology and criminal justice; law and social theory; and critical legal studies. (shrink)

This essay considers the two-way relation between critical realism and psychoanalysis. Critical realism vindicates and deepens our understanding of ontology by drawing on the sciences for which it...

In this article I argue for a full appraisal of Hobbes's theory of punishment which takes account of its divergent and contradictory aspects. Examining his theory within the general context of his position in Leviathan, it is possible to see its centrality for the subsequent development of the modern philosophy of punishment. From this point of view, it is also possible to pinpoint the source of a central weakness in the retributive theory of punishment.

ABSTRACTThis essay considers the nature of mourning and melancholia in light of Patrizio Guzman’s film, Nostalgia for the Light. It examines the position of three women dealing with the aftermath o...

This essay argues that Didier Fassin’s ‘The Will to Punish’ reveals the social grounds for a ‘persecutory impulse’ in modern punishment, which sits alongside a ‘humanising trace’. The challenge for a critical theory of modern penality is to think through this strange combination. The work of Melanie Klein and Freud, properly interpreted, can illuminate its conjunction and disjunction.

This essay argues that critical realism provides a philosophical perspective from which to talk about good and evil. It draws on dialectical critical realism’s meta-ethics of freedom and solidarity, and the different grades of freedom identified there: from the basic spontaneity in agency to the possibility of a fully flourishing, eudaimonic social condition. It argues that evil acts can be understood as those which fundamentally deny basic human freedom (spontaneity) and solidarity, and that good acts are those which affirm human (...) flourishing and solidarity. It draws upon Hannah Arendt’s depiction of what was morally evil in the Holocaust, and recent English criminal trials involving mercy killing to depict the good. It suggests that moral framing in terms of good and evil lies beyond the terms in which modern law thinks of human actions. (shrink)

Through dialectical critical realism, Roy Bhaskar has made an important contribution to two different theoretical traditions. One is the philosophy of critical realism, where he aims for a more supple and reflexive approach. The other is dialectical theory, which he seeks to undergird and recast by locating on a realist terrain. Here an important question is how recasting affects existing dialectical thought. Bhaskar's own writings focus in this regard on dialectical critical realism's relation to Hegel. This paper addresses it by (...) comparing and contrasting dialectical critical realism with Theodor Adorno's negative dialectics, the approach which probably comes closest to dialectical critical realism. The first two main sections are accordingly directed to developing an account of Bhaskar's dialectical critical realism and comparing it to Adorno's negative dialectics. My argument is that what Bhaskar and Adorno have in common is a commitment to a realist ontology, but that Adorno's account is limited by a competing tendency towards irrealism. This gives his negative dialectics an unstable foundation, and this is brought out by the comparison with dialectical critical realism. The third and fourth sections bring out the implications of this tension for Adorno's account of modern freedom in his Negative Dialectics. Three competing views are identified, and it is argued that these coher on the basis of a realist reading of his analysis. An irrealist reading reduces them to incoherence. (shrink)

This essay considers how we talk in moral terms about crime and punishment using a framework that comes from psychoanalysis. The idea of the human as a metaphysical animal, an animal that thinks and loves, is given a naturalistic explanation in Freudian metapsychology as it was developed by Melanie Klein and Hans Loewald. While the former helps us understand the desire to punish as the enjoyable return of pain for pain, the latter indicates how mature human beings seek to pursue (...) a sense of wholeness. This understanding of moral psychology is applied to thinking about criminal justice where three ethical stances are identified, the vindictive, the vindicative and the validatory. The vindictive and the vindicative represent a compromise formation in law which excludes a broader validatory process aimed at truthful human reconciliation. (shrink)

. The modern interpretation of Smith as a retributive theorist of punishment is challenged in favour of a view of his work as containing a curious amalgam of retributive and utilitarian elements. This unsynthesised theoretical compound accounts for many of the contradictory positions assumed by him, examples of which are given in the article. At the level of “punishment” , the retributivehtilitarian dichotomy is observed in his discussions of merit and demerit and propriety and impropriety . At the level of (...) state punishment, the same dichotomy is seen in his juxtaposition of considerations of individual justice and the political ends of punishment. A final section locates Smith's “double cleft stick” theoretically in his position on the one hand in the Hobbesian materialist tradition and on the other in his historical stance half‐way between the individualism of the contractarians and the full blown utilitarianism of Bentham. (shrink)

In this response to John Roberts’s essay in JCR 12 2013, I argue that Roberts presents Hegel in a one-sided way that stresses the negative, critical side of his thinking and misses its rationally resolutive side. At the same time, he mislocates Roy Bhaskar’s dialectical work and therefore misunderstands it. In terms of ethics, the key to understanding Bhaskar is the constellational relation he devises between ethics and geo-history, leading to a view of modern ethics as constituting a ‘broken dialectic’.

This essay explores what we might mean by good and evil, and argues that these terms remain salient for a critical, socio-historical, understanding of criminal law. It draws upon a meta-ethics of freedom and solidarity to explain what good means in recent mercy killing cases in England and Wales, and what evil means in Arendt’s phrase, the ‘banality of evil’.

Editor’s NoteThanks to the initiative of Alan Norrie, we are pleased to present here a symposium on Nick Wilson’s book The Space that Separates: A Realist Theory of Art. Several authors have contri...

In this essay I evaluate Larry Alan Busk’s critique of contemporary democratic theorists and contemporary “democratic” politics in Democracy in Spite of the Demos in the context of Carl Schmitt’s critique of modern democracy. I argue that Busk shares Schmitt’s general conception of democracy and of the dangers attending any appeal to it. Though Busk presents Herbert Marcuse and Theodor Adorno as alternatives to the current crop of democratic theorists, I demonstrate that Marcuse fell prey to the most significant (...) of the paradoxes and ambivalences that Schmitt prognosticated. Adorno, I argue, is less unsteady an ally, but one that stays further back from politics than Busk evidently wishes. In the end, Busk’s Schmittian critique of democracy and democratic theory extends further than he himself suggests and reveals, not to a solution to our problems, but a new way of understanding them and their severity. (shrink)

This article responds to four critics of Democracy in Spite of the Demos and reiterates its central thesis. Christopher Holman and Théophile Pénigaud attempt to maintain the critical value of democracy by invoking different elements of the deliberative tradition, while Benjamin Schupmann answers my charges by appealing to a strong liberal constitutionalism. I argue that these attempts repeat the ambivalence described and criticized in the book: democracy is taken as an end in itself, but with asterisks that introduce conditions and (...) qualifications. As long as democracy is only desirable given certain caveats, the critical weight is placed on these caveats and not on the figure of democracy. Andrew Norris takes a different approach, interrogating the book’s use of ideology critique and the concept of “socially necessary delusion.” This intervention presents difficulties to the concluding suggestion of the book, but I maintain that that these difficulties can be productive and generative rather than limiting or prohibitive. (shrink)

Precautionary Criminalisation in an Age of Vulnerable Autonomy Content Type Journal Article Category Book Review Pages 1-3 DOI 10.1007/s11572-012-9142-4 Authors Jonathan Simon, Adrian A Kragen Professor of Law, University of California, Berkeley, CA, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.

I propose to consider the question, "Can machines think?" This should begin with definitions of the meaning of the terms "machine" and "think." The definitions might be framed so as to reflect so far as possible the normal use of the words, but this attitude is dangerous, If the meaning of the words "machine" and "think" are to be found by examining how they are commonly used it is difficult to escape the conclusion that the meaning and the answer to (...) the question, "Can machines think?" is to be sought in a statistical survey such as a Gallup poll. But this is absurd. Instead of attempting such a definition I shall replace the question by another, which is closely related to it and is expressed in relatively unambiguous words. The new form of the problem can be described in terms of a game which we call the 'imitation game." It is played with three people, a man (A), a woman (B), and an interrogator (C) who may be of either sex. The interrogator stays in a room apart front the other two. The object of the game for the interrogator is to determine which of the other two is the man and which is the woman. He knows them by labels X and Y, and at the end of the game he says either "X is A and Y is B" or "X is B and Y is A." The interrogator is allowed to put questions to A and B. We now ask the question, "What will happen when a machine takes the part of A in this game?" Will the interrogator decide wrongly as often when the game is played like this as he does when the game is played between a man and a woman? These questions replace our original, "Can machines think?". (shrink)

In this book, Alan Wertheimer seeks to identify when a transaction or relationship can be properly regarded as exploitative--and not oppressive, manipulative, or morally deficient in some other way--and explores the moral weight of taking ...

Robert Alexy’s theory of legal argumentation is among the notable contributions made to mainstream jurisprudence in the last three decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. A recent collection of essays edited by George Pavlakos explores Alexy’s theory from a number of philosophical standpoints, revealing its theoretical potential and flaws. By doing so, this volume helps us to gain a better understanding of the implications of Alexy’s theory of legal (...) argumentation, but also to identify new areas of research within the discourse theory of law. Although this collection is concerned with a critical examination of various aspects of Alexy’s work, it nonetheless draws attention to the dual characteristics of positive law, that is, the problematic separation of facts from values, law from morality, legal certainty from justice, which continue to preoccupy legal theory. In what follows I shall attempt to examine the debate between Alexy and the contributors to Pavlakos’s volume in order to gain a deeper understanding of the role of dichotomies in legal theory. Part 1 starts by explaining the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere. However, in the following pages, I shall use Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. In that sense, this essay presents both Norrie’s and Alexy’s works, using the former to critically assess the latter. In Part 2, I briefly sketch the layout of Pavlakos’s collection to provide an overview of the type of questions that are discussed by the various contributors. Parts 3 and 4 bring into focus two issues that loom large in the collection. The first issue is Alexy’s central thesis on law’s claim to correctness, while the second concerns the duality of law exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. In Part 5, I conclude the essay by reflecting on some of the implications of Alexy’s thesis. (shrink)

Alan Sidelle's Necessity, Essence, and Individuation is a sustained defense of empiricism—or, more generally, conventionalism—against recent attacks by realists. Sidelle focuses his attention on necessity a posteriori, a kind of necessity which contemporary realists have taken to support realism over empiricism. Turning the tables against the realists, Sidelle argues that if there are in fact truths necessary a posteriori, it is not realism, but rather empiricism which provides the best explanation for them.

'The law imposes the duty of care: but the standard of care is a matter of medical judgment'. So says Lord Scarman, outlining the hitherto accepted 'Bolam' standard, in his recent speech in the House of Lords decision of Sidaway v Bethlem Royal Hospital, reflecting earlier judicial dicta suggesting that it is for the medical profession rather than the courts to determine whether or not a medical practitioner has achieved the required standard of care (1). It is suggested here that (...) this concept is bad in principle, and that the weight of judicial authority is against it. (shrink)