The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation

Abstract

This paper argues that the standard account of contemporary criminal responsibility as founded in engaged agentic capacities may be in need of revision in at least two respects. First, there is reason to doubt whether assumptions about responsibility as founded in bad character have ever been evacuated from criminal law doctrine in its path towards the refinement of a notion of individual capacity-responsibility. Second, there is particular reason to think that assumptions about character are enjoying a revival in contemporary English (and American) criminal responsibility-attribution in phenomena such as mandatory sentencing laws applying to particular categories of ‘dangerous’ offender; in phenomena such as sex offender notification requirements; in the substantive law, particularly that dealing with terrorism; and in the operation of evidential presumptions, detention rules and the renewed admissibility of evidence of bad character. The paper offers a differentiated conceptual framework for identifying and analysing the waxing and waning influence of ‘character’ in criminal law. Second, drawing on this model, it demonstrates the variety of ways in which contemporary criminal law is marked by a resurgence of ‘character’, paying particular attention to the ways in which this resurgence both resembles and differs from the reliance on ‘character’ typical of pre-modern or 18th Century criminal justice. Third, it sketches an explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility. And finally, it draws some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which typically distinguishes between issues going to substance and those going to procedure; between issues of doctrinal structure and those of substantive scope; and between questions of responsibility and questions of criminalisation and punishment more generally.