Historical differentiation, moral judgment and the modern criminal law

Abstract

Nicola Lacey proposes an analysis of criminal law which links principles of responsibility to their historical development. Starting from George Fletcher’s account of three historical patterns of liability (Fletcher, 1978), Lacey develops a more complex differentiation, and at the same time foregrounds the historical conditions for the emergence of different conceptions of responsibility. 1 In thinking about these, Lacey’s focus is on the relationship between capacity and character-based conceptions. Capacity-based conceptions rely upon either the identification of free choices on the basis of psychological states of mind—reason, intention, foresight, will formation—or the existence of ideas of fair opportunity to conform one’s behaviour to law. As for character responsibility, Lacey identifies ‘broad’ and ‘cautious’ forms, and she suggests, drawing on Victor Tadros’s work (2005), that character-based conceptions also inhere within the modern criminal law wherever broad-based conceptions of reasonableness operate in the law. Where reasonableness is at issue, this permits judges and juries to link conduct to the kind of person that the defendant is, and to evaluate his or her actions according to a broader view of their settled dispositions, their habitual beliefs, desires, emotions and values. Alongside these four forms of capacity and character based responsibility, there operates a fifth form, outcome based responsibility. This is the sense that to be associated with a particular outcome, whether one intended it or not, whether one displayed a good or bad character with regard to it, is relevant to some sense of responsibility for it. Outcome responsibility is most obvious with regard to offences of strict liability, where the state adopts the view that certain kinds of activities simply need to be regulated, and that bad outcomes should lead to certain kinds of regulation and punishment. Here, however, we are in the realm of the so-called