Victor Tadros Research Articles

Criminal Responsibility by Victor Tadros

Criminal Responsibility by Victor Tadros

Historical differentiation, moral judgment and the modern criminal law

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

Victor Tadros, Criminal Responsibility

Victor Tadros, <i>Criminal Responsibility</i>

Victor Tadros, Criminal Responsibility

Victor Tadros, Criminal Responsibility

Jury Trials and Plea Bargaining: A True History. By Mike McConville and Chester L. Mirsky (Oxford: Hart Publishing, 2005, 364pp. £35.00 hb) The Trial on Trial: Volume One—Truth and Due Process. By Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, eds (Oxford: Hart Publishing, 2004, 207pp. £35.00 hb)

Jury Trials and Plea Bargaining: A True History. By Mike McConville and Chester L. Mirsky (Oxford: Hart Publishing, 2005, 364pp. £35.00 hb) The Trial on Trial: Volume One—Truth and Due Process. By Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, eds (Oxford: Hart Publishing, 2004, 207pp. £35.00 hb)

Criminal Responsibility. By Victor Tadros (Oxford: Oxford University Press, 2005. 389 pp. £50.00 hb).

Criminal Responsibility. By Victor Tadros (Oxford: Oxford University Press, 2005. 389 pp. £50.00 hb).

Communicating Moral Responsibility through Criminal Law

In his recent book, Criminal Responsibility, Victor Tadros attempts to delineate the appropriate basis for attributing criminal responsibility. In the first part of the book, he develops a general theory of responsibility based upon ideas of agency. In the second part of the book he applies philosophical arguments as to the nature of responsibility to the present components of criminal law: actus reus, mens rea, omissions, intention, belief, defences, excuses, insanity, etc. The task here is a finely balanced one. Tadros wishes to improve our understanding of the manner in which responsibility currently operates within the criminal justice system. As such he cannot offer a utopian moral critique. But at the same time, his theory has a critical function. By improving our understanding of responsibility, we will better understand how to organize criminal law. Thus, so long as most criminal law categories (or at least most of those discussed in this book) can be explained as attempts to identify offenders who can properly be held responsible for their criminal behaviour then, with some adjustments, the remainder can be made to conform.

The Search for a New Normativity: Thomas Franck, Post-modern Neo-tribalism and the Law of Self-determination

* Faculty of Law, University of Edinburgh. I am grateful to Bill Bowring, Holly Cullen, Thomas Franck, Kathryn Last, Victor Tadros and to all members of the ILA (British Branch) Committee on Theory and International Law for helpful comments on earlier drafts and seminar presentations of this paper. 1 Eisner, ‘A Procedural Model for the Resolution of Secessionist Disputes’, 33 Harvard International Law Journal (1992) 413. 2 T. M. Franck, Fairness in International Law and Institutions (1995) [hereinafter Fairness]. EJIL (2002), Vol. 13 No. 4, 941–960 The Search for a New Normativity: Thomas Franck, Post-modern Neo-tribalism and the Law of Self-determination

Book Reviews

Book reviews: Grisso, Thomas and Robert G. Schwartz (eds.), Youth on Trial: A Developmental Perspective on Juvenile Justice (reviewed by Anne Worrall); Goldson, Barry (ed.), The New Youth Justice (reviewed by Anne Worrall); Frynas, Jedrzej Georg, Oil in Nigeria: Conflict and Litigation between Oil Companies and Village Communities (reviewed by Amazu A. Asouzu); Nobles, Richard and David Schiff, Understanding Miscarriages of Justice: Law, the Media and the Inevitability of a Crisis (reviewed by Victor Tadros); Ballinger, Anette, Dead Women Walking: Executed Women in England and Wales 1900-1955. (reviewed by Jo Winter); Childs, Mary and Lousie Ellison (eds.), Feminist Perspectives on Evidence (reviewed by Christopher Nowlin); Dryzek, John S., Deliberative Democracy and Beyond: Liberals, Critics, Contestations (reviewed by Colin Harvey); Thomson, Michael, Reproducing Narrative: Gender, Reproduction and Law 1998. (reviewed by Marie Fox)