Attribution, Ethics and Emotions in Criminal Responsibility

Abstract

How should one go about writing about criminal law? In entitling his book Central Issues in Criminal Theory,' William Wilson implies that he places his enterprise within a certain niche of writing about criminal law that is somehow to be distinguished from other kinds of writing about criminal law. The discipline of criminal law theory, it is sometimes thought, constitutes a distinct part of writing about criminal law more generally. Why not just Central Issues in Criminal Law? What is at stake in this label'theory'? What is it to be contrasted with? Perhaps it is to be contrasted with practical writing about criminal law. Perhaps it might be thought a practical enterprise for criminal lawyers to summarise and collect the decisions of the courts in an accessible fashion. But that would put almost all academic criminal lawyers in the theoretical rather than the practical camp. For surely there is more even to the most traditional textbooks than the production of an accessible account of what the law is. Most accounts of the criminal law have at least some normative ambitions: they at least attempt to provide some account of what decisions should be reached in the future. And many accounts of the criminal law have at least some explanatory ambitions: they attempt to explain, perhaps using rather limited resources, why the law is as it stands. Furthermore, there is little reason to think that the courts will best be assisted simply by collecting together their previous decisions in an acceptable form. Writing normatively about the criminal law, or explaining why the law is as it stands, surely ought to be useful to the courts in making their decisions by providing guidance as to the proper principles underlying criminal responsibility. And in that sense, writing theoretically about what the criminal law ought to include might be considered a practical enterprise. For if writing normatively about the criminal law is to provide the proper kind of support to the courts in making new decisions, or to Parliament in making new laws, criminal lawyers need to justify what they recommend. And if explaining why the criminal law is as it stands is to give some direction to future legal decisions, such explanations must be properly defended. But there is nothing more 'theoretical' to theoretical criminal law than the attempt to justify what is argued for deeply, clearly and convincingly. Given that criminal law is clearly important, how could one justify