Denial and Responsibility

Abstract

The dominant theories of responsibility in contemporary criminal law scholarship argue or assume that individuals or, more rarely, groups are responsible for criminal acts or omissions which engage their capacities for rational deliberation. Whether based on choice, opportunity or character, these agency-based theories typically attach importance to attitudes or states of mind such as knowledge, intention and recklessness, with dispositions such as carelessness or indifference featuring as secondary bases for the attribution of responsibility. This paper reflects on the implications of Stanley Cohen’s monograph States of Denial for our practices of attributing criminal responsibility. To what extent does, and should, criminal law hold us responsible for taking risks we are unaware of, or for engaging in conduct the harmful or wrongful nature of which we are not conscious, where that lack of consciousness or awareness is due to ‘states of denial?’ Cohen’s arguments, it is suggested, constitute a useful starting point to begin to think about the scope – and limits – of human responsibility, and about the relationship between the variegated understandings of responsibility which circulate in our social world. The paper traces the variety of conceptions of responsibility circulating in not only legal and philosophical but also in broader social discourse, noting the lack of fit between certain pervasive social understandings of, or feelings about, responsibility and legal or moral conceptions. It then goes on to trace the influence of ideas of responsibility in practices of criminal exculpation and inculpation, arguing that this survey suggests that a more explicit dialogue between criminological, philosophical and legal conceptions of responsibility on the one hand and psychological/psychoanalytic and social conceptions of responsibility on the other can sharpen our appreciation of the practical imperatives of – and limits on – practices of formal ‘responsibilisation’. Such a dialogue may also illuminate the ways in which formal mechanisms of responsibility-attribution in fact draw upon certain informal understandings which they have tended not to acknowledge.