In Eichmann in Jerusalem , Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the question (...) of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity. (shrink)

This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity in (...) four-planar nature. This view makes criminal theory‘s Autonomy Assumption look deeply questionable; autonomy must be a complex, nuanced open question, not an abstract, a priori default assumption. (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)

The paper deals with the notion of guilt according to Heidegger’s philosophy and its repercussions for the understanding of guilt according to criminal law doctrine and theory. Heidegger’s notion on guilt is tantamount to Dasein’s incapacity to exhaust all its existential possibilities, whereas legal guilt has to do only with man’s legal indebtedness, which is an aspect of inauthenticity, a deficient mode of ontological responsibility. This does not mean, though, sheer amoralism or apologetics to violence. In late Heidegger one may (...) discern traces of an ontological ethics, which refers to Dasein’s attunement to Being and especially to the sparing and healing of the Fourfold as these are coming to presence through poetic dwelling; through, that is, an authentic contact with the Uncanny, meaning a radical exposure to Being’s enigmatic hiddenness, the endurance in front of the abyss of Nothingness. In this framework there remains no space for assuming any moral-juridical responsibility, because Dasein is predestined to err constantly due to the ruptures and turnings of Being’s history. Legal blameworthiness is thus obsolete because, injustice being according to Heidegger the dis-jointure of Being’s order, there is ontologically no imputable ‘legal’ crime; there is only Dasein’s eventful projecting-opening within errancy. Whether though this notion of ‘Being’ is a new ‘arche’ to be superseded emerges then as the crucial question. To regain any non-metaphysical notion of guilt is after Heidegger only possible through a theoretical move which cannot ignore his legacy but also has to go beyond the Master. (shrink)

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...

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...

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’.

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)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in legal theory (...) involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that φing is (...) what we call bare wrongful —that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and directed more at (...) empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

This thesis examines some of the contested meanings of what it is to be a self, person and individual. The law of obligations sets the context for this examination. One of the important aspects of contemporary feminist philosophy has been its move beyond highlighting inconsistencies in political and legal theory, in which theoretical frameworks can be shown to rely upon an ambiguous treatment of women. The feminist theorists whose work is considered use these theoretical weaknesses as a point of departure (...) to propose different conceptual frameworks. I start by analysing contemporary work on the self from within both philosophy of science and feminist metaphysics to draw out common approaches from these diverse positions. These themes are then discussed in the context of the law. I then critically examine the concept of legal personhood in the work of Drucilla Cornell and her proposals for the amendment of tort law. This is juxtaposed with an analysis of the practical operation of tort law by adapting François Ewald's work on risk and insurance to English law. I concentrate on women's ambiguous position with regard to both risk and to the image of the individual that is the subject of Ewald's critique. This is followed by an examination of the changing position of women with regard to 'possessive individualism', 'self-ownership' or 'property in the person' in relation to contract law and social contract theory. There are a number of different social contracts discussed in the thesis: Cornell's reworking of John Rawls and the stories of Thomas Hobbes and of Carole Pateman. The final 'social contract' to be discussed is that of 'new contractualism', the employment of contract as a technique of government. I argue that Pateman's critique of possessive individualism continues to be relevant at a time when the breadwinner/housewife model has broken down. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)