A new approach to sentencing Not Just Deserts inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice which draws on a philosophical view of the good and the right, and which points the way to practical intervention in the real world of incremental (...) reform. They put the case for a criminal justice system which maximizes freedom in the old republican sense of the term, and which they call `dominion'. (shrink)

Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in (...) relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences—typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context—imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law (...) cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

What makes someone responsible for a crime and therefore liable to punishment under the criminal law? Modern lawyers will quickly and easily point to the criminal law's requirement of concurrent actus reus and mens rea, doctrines of the criminal law which ensure that someone will only be found criminally responsible if they have committed criminal conduct while possessing capacities of understanding, awareness, and self-control at the time of offense. Any notion of criminal responsibility based on the character of the offender, (...) meaning an implication of criminality based on reputation or the assumed disposition of the person, would seem to today's criminal lawyer a relic of the 18th Century. In this volume, Nicola Lacey demonstrates that the practice of character-based patterns of attribution was not laid to rest in 18th Century criminal law, but is alive and well in contemporary English criminal responsibility-attribution. Building upon the analysis of criminal responsibility in her previous book, Women, Crime, and Character, Lacey investigates the changing nature of criminal responsibility in English law from the mid-18th Century to the early 21st Century. Through a combined philosophical, historical, and socio-legal approach, this volume evidences how the theory behind criminal responsibility has shifted over time. The character and outcome responsibility which dominated criminal law in the 18th Century diminished in ideological importance in the following two centuries, when the idea of responsibility as founded in capacity was gradually established as the core of criminal law. Lacey traces the historical trajectory of responsibility into the 21st Century, arguing that ideas of character responsibility and the discourse of responsibility as founded in risk are enjoying a renaissance in the modern criminal law. These ideas of criminal responsibility are explored through an examination of the institutions through which they are produced, interpreted and executed; the interests which have shaped both doctrines and institutions; and the substantive social functions which criminal law and punishment have been expected to perform at different points in history. (shrink)

Herbert Lionel Adolphus Hart was born in Yorkshire in 1907 to second generation Jewish immigrants. Having won a scholarship to Oxford University, he went on to become the most famous legal philosopher of the twentieth century. From 1932-40 H.L.A Hart practised as a barrister in London. He was pronounced physically unfit for military service in 1940, and was recruited by MI5, where he worked until 1945. During his time at the Bar he had continued to study philosophy and at M15 (...) his interest was further stimulated by his philosopher colleagues in M16, Stuart Hampshire and Gilbert Ryle. After the war, Hart returned to Oxford to take up a philosophy fellowship, later to become Professor of Jurisprudence. H.L.A Hart single-handedly reinvented the philosophy of law and influenced the nation's thinking in the 1960s on abortion, the legalization of homosexuality, and on capital punishment. Hart's approach to legal philosophy was at once disarmingly simple and breathtakingly ambitious, combining as it did the insights of Austin and Bentham and the new linguistic philosophy of J.L. Austin and Ludwig Wittgenstein. He sought to elucidate a concept of law which would be of relevance to all forms of law, wherever or whenever they arose: his bestselling book, The Concept of Law, has sold tens of thousands of copies worldwide. In 1941, he married Jenifer Williams (a high-ranking civil servant, later an Oxford academic) with whom he had four children. Their relationship was an enduring if unconventional one. In the early 1950s, Jenifer was rumoured to be having a long-standing affair with Isaiah Berlin, one of Hart's closest friends. She was also, falsely, accused by the Sunday Times of having been a Russian spy, an allegation which was all the more scandalous given Hart's position at MI5 during the War. Nicola Lacey draws on Hart's previously unpublished diaries and letters to reveal a complex inner life. Outwardly successful, Hart was in fact tormented by doubts about his intellectual abilities, his sexual identity and his capacity to form close relationships. Her biography also sheds fascinating light on the origins of his ideas, and assesses his overall contribution. Above all, it chronicles of a life which had a depth ands impact far greater than many of Hart's readers have realized. (shrink)

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

To generations of lawyers, H. L. A. Hart is known as the twentieth century's greatest legal philosopher. Whilst his scholarship revolutionized the study of law, as a social commentator he gave intellectual impetus to the liberalizing of society in the 1960s. But behind his public success, Hart struggled with demons. His Jewish background, ambivalent sexuality, and unconventional marriage all fuelled his psychological complexity; allegations of espionage, though immediately quashed, nearly destroyed him. Nicola Lacey s biography explores the forces that shaped (...) an extraordinary life. (shrink)

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes and two fine monographs by Farmer and Tadros. It will shape the field for decades to come; and it has (...) decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility. (shrink)

Shortlisted for the 2005 British Academy Book prize, Nicola Lacey's entrancing biography recounts the life of H.L.A. Hart, the pre-eminent legal philosopher of the twentieth century. Following Hart's life from modest origins as the son of Jewish tailor parents in Yorkshire to worldwide fame as the most influential English-speaking legal theorist of the post-War era, the book traces his successive metamorphoses; from Yorkshire schoolboy to Oxford scholar, from government intelligence officer to Professor of Jurisprudence, from awkward batchelor to family figurehead. (...) In the tradition of Ray Monk's biography of Wittgenstein, Nicola Lacey paints an absorbing picture of intellectual and psychological development, of a mind struggling to cope with intellectual self-doubt, uncertain sexuality, a difficult marriage and an anti-semitic society. In depicting the evolution of Hart's life and mind, Lacey provides a vivid recreation of both the intellectual and social climate of Oxford in the post-War era. (shrink)

In this paper, the author suggest that the historical and institutional conditions of existence of the concepts which animate legal argumentation – like the historical and institutional conditions of existence of certain forms of law – are of interest not only in their own right, but also because they raise methodological issues for jurisprudence. These include questions about the relationship between concepts and the social phenomena which they purport to categorise; about the relationship between philosophical and other forms of legal (...) theory; and about how a jurisprudence largely dominated by philosophical methods may be brought into productive dialogue with other forms of theoretical analysis. Only by broadening both its horizons and its methods, the author argues, will jurisprudence be capable of illuminating not only doctrinal analysis within particular jurisdictions at particular times, but also comparative and historical scholarship. (shrink)

Volume 10, Issue 1, March 2019, Page 85-90.

In this brief introduction, I shall rather reflect, from a biographer’s viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart’s ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart’s work, Discretion features a notable emphasis on (...) the significance of institutional factors in our understanding of the nature of legal decisionmaking; and I argue that Hart’s failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart’s legal philosophy. (shrink)

This book provides an accessible introduction to jurisprudence and legal theory. It sets out a course of study that offers a highly effective series of introductions into a wide variety of theories and theoretical perspectives, from traditional approaches such as Natural Law to modern ones such as Feminist Theory, Economic Analysis of Law and Foucault and Law, The book is designed for students of jurisprudence and legal theory, but it will also assist those studying law and legal systems within courses (...) on Political Science, Philosophy and Sociology. (shrink)

Over the last twenty years there has been an explosion of interest in ‘criminal justice’, generating a wealth of research incorporating law, philosophy, political theory, sociology and other disciplines. The fascination of criminal justice flows from the cultural prominence of criminalization as a form of social control. The news media in Australia, Britain or the United States provide plentiful evidence of the extent to which crime, fear of crime, government criminal justice policy and the activities of the more visible enforcement (...) agencies such as the police preoccupy many contemporary Western societies. At the international level, too, criminal justice is increasingly salient. Moreover, the status of criminal justice as a particularly coercive and costly governmental repertoire claims our attention. Yet the diversity of practices encompassed within the notion of ‘criminal justice’, and the variety of practical, philosophical and political questions which they raise, make criminal justice an elusive subject. All too often, the general ‘theories of criminal justice’ which purport to make sense of the concrete practices illuminated by empirical research turn out to be too abstract and/or too narrow in focus to fulfil that promise. The purpose of this chapter is to provide a framework which might enable us to make sense of criminal justice without imposing an unrealistically rigid or unduly circumscribed model on the complicated processes with which we are concerned. (shrink)

In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century (...) England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency. (shrink)

Name der Zeitschrift: Deutsche Zeitschrift für Philosophie Jahrgang: 64 Heft: 2 Seiten: 258-272.

A situated agent is one which operates within an environment. In most cases, the environment in which the agent exists will be more complex than the agent itself. This means that an agent, human or artificial, which wishes to carry out non-trivial operations in its environment must use techniques which allow an unbounded world to be represented within a cognitively bounded agent. We present a brief description of some important theories within the fields of epistemology and metaphysics. We then discuss (...) ways in which philosophical problems of scepticism are related to the problems faced by knowledge representation. We suggest that some of the methods that philosophers have developed to address the problems of epistemology may be relevant to the problems of representing knowledge within artificial agents. (shrink)

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

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)