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Criminal Responsibility and the Living Self

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Abstract

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.

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Notes

  1. Indeed, both retributive (‘punishment’) and utilitarian (‘deterrence’, ‘rehabilitation’) ideals are expressly stated as guiding concerns for sentencing in English criminal justice: see s142(1) Criminal Justice Act 2003; see also Ashworth (2006, 19).

  2. Note also the work of Beccaria, which focuses upon the issue of deterrence (as opposed to retributive punishment): see Norrie (1993, 19). On the oppositional relationship between this type of utilitarianism and Kant’s retributive ideals, see Morrison (1997, 146-149).

  3. In general, ‘responsibility’ relates to the wider realm of human behaviour, be it proscribed or lauded, whilst ‘liability’ is more closely associated with unwanted immoral or illegal behaviour (see Cane 2002, 1-2; Duff 2007, 15-16). In practical terms, the two are linked: finding responsibility may not entail a normative, moral, or legal judgment, but how the wider self-as-responsible is understood informs more specific understandings of the self-as-liable which are interlinked with such judgments (Tadros 2005, 1-3, 24-27). In examining how we model the self-as-responsible, our concern is with how individuals are understood as responsible in general, not with specific examples of behaviour contained in legal or moral codes. (What ‘should’ make up the content of legal and moral codes is obviously a very expansive and highly debated topic in itself; for an in depth discussion on this issue, see, for example, Chapters 4, 5, and 6 of Duff 2007.)

  4. But note, for example, simplistic ‘rational choice’ theories based on individuals’ use of ‘cost-benefit’ type analyses, which share much with Bentham’s behavioural matrix of pleasure and pain. For a brief introduction, see Hopkins Burke (2005, 40-50); see also, for example, Clarke (2005).

  5. It should be noted that there are exceptions to this feature of the normal moral self, deriving from the existence of excusatory conditions that may undermine the capacity for rational choice. For a detailed account of excuses, see Horder (2004).

  6. This argument is essentially a version of the ‘originalism’ discussed in free will debates: see, for example, Honderich (2002).

  7. Kant also limits access to particular types of people, his most notable exclusion being women. See Battersby (2007), particularly Chapters 4 and 5.

  8. For a detailed discussion of the move from aesthetic to political judgment following Kant in the work of Hannah Arendt, for example, see Ricoeur (2000, 94-108).

  9. For a more detailed discussion of criminological and cultural criminological method, see Ferrell et al. (2008, 158-194). See also, for a damning attack on the prevalence of statistics in criminal and social research, Young (2004). For an extended analysis of the sensuality and ‘seduction’ of criminality, see Katz (1988). For a detailed introduction to the more orthodox methods of criminology, see Coleman & Moynihan (1996).

  10. For an analysis of the importance of studying the visual dimensions of crime in cultural criminology, see Hayward (2010). Regarding the general denigration of the visual in criminology and sociology, note page 5 of Hayward’s work. See also Ferrell et al. (2008, 175). See also, for an examination of the usefulness to legal theory of visual-textual interaction examined via the medium of comics, Giddens (2012).

  11. Note that the idea of ‘restlessness’ has been argued to be important for legal theory in general, in relation the shifting of values and society over time and law’s ability to respond to the uncertainty of the future. See Golder and Fitzpatrick (2009).

  12. There are many other alterations, too, that undermine the seeming stability and ‘justice’ of the 1962 version: see, for his full analysis, Sherwin (2000, 172-185).

  13. Paul Ricoeur makes similar, if more general, observations when he argues that seeking justice or reparation in terms of ‘risk’ removes any individual from the sphere of responsibility, thus pushing us into fatalism rather than responsibility (Ricoeur 2000:25-26).

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Acknowledgments

The author wishes to thank Lindsay Farmer and Stephen Skinner (as well as the mysterious reviewers) for their insights and comments on earlier versions of this paper.

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  1. St Mary’s University College, Waldegrave Road, Strawberry Hill, Twickenham, TW1 4SX, UK

    Thomas Giddens

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Giddens, T. Criminal Responsibility and the Living Self. Criminal Law, Philosophy 9, 189–206 (2015). https://doi.org/10.1007/s11572-013-9212-2

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