How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those (...) norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined (...) for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants. (shrink)

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces (...) in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions. (shrink)

This paper considers the interpretive significance of the intersecting relationships between different conceptions of responsibility as they shift over space and time. The paper falls into two main sections. The first gives an account of several conceptions of responsibility: two conceptions founded in ideas of capacity; two founded in ideas of character, and one founded in the relationship between an agent and the outcome which she causes. The second main section uses this differentiated conceptual account to analyse and interpret certain (...) aspects of the contemporary criminal law of England and Wales. In conclusion, the paper considers a number of hypotheses about what the evidence of certain shifts in the relationship between the three families of responsibility-conception can tell us about the current state and significance of criminal law among other systems of social governance. (shrink)

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically (...) late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence. (shrink)