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The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State

Author(s): Peter Ramsay


Source: The Modern Law Review, Vol. 69, No. 1 (Jan., 2006), pp. 29-58
Published by: Wiley on behalf of the Modern Law Review
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The Responsible Subject As Citizen: Criminal Law,
Democracy And The Welfare State

Peter Ramsay*

This paper seeks to explain two problems posed by the history of criminal law doctrine by situat-
ing them in the context of the political sociology of citizenship. First, the paper outlines the logi-
cal connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and
the contemporaneous emergence of universal political citizenship. Secondly, it argues that sub-
jectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of reg-
ulatory strict liability law within the terms of 'modern democratic citizenship' as the latter were
conceptualised byT. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent
philosophical rationalisation of the modern criminal law, it proposes that situating the criminal
law in its environment of citizenship will help us to understand better the tensions that underlie
contemporary challenges to its doctrine.

INTRODUCTION

'At the start of the twenty-first century, it is little exaggeration


question of individual responsibility.., stands as the question o
inal law theory.' Most postwar theorising about the substantiv
been preoccupied with the question of fault, the mental eleme
tion of the law's 'general part'. The starting point for most of thi
that there is a special relationship, or "natural affinity" betwe
moral philosophy'.2 In its most influential form, dubbed 'orth
this type of theory has dominated law schools and the Law C
However, in recent years, as the scope of the criminal law has
effectiveness in deterring crime come to be doubted,5 intellec
orthodox subjectivism has been shaken.6 Over the past 20 year
has been subjected to a barrage of criticism. This criticism has
cular, the theory's decidedly partial grasp of the actual criminal la
attention to the law's historical development.7

*Doctoral candidate, King's College London. My thanks to Professor Alan


mous referees for their comments on, and criticisms of, earlier drafts of this p
nions are my own.

1 N. Lacey,'In Search of the Responsible Subject; History, Philosophy, and


inal LawTheory' (2001) 64 MLR 350, 350 (emphasis original).
2 L. Farmer, Criminal Law, Tradition and Legal Order (Cambridge: Cambridge
5; see also N. Lacey, 'Contingency, coherence, conceptualism' in A. Duff (e
Criminal Law, (Cambridge: Cambridge University Press, 1990) 38.
3 A. Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990).
4 A. Ashworth,'Is the criminal law a lost cause?' (2000) 116 LQR 225.
5 Farmer, n 2 above, 4-7.
6 I. Dennis,'The critical condition of the criminal law' [1997] Current Legal Pro
7 These criticisms are reviewed by Lacey, n 1 above, 354-362.

? The Modern Law Review Limited 2006 (2006) 69(1) MLR 29-58
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The Responsible Subject as Citizen

This paper is addressed to a question which arises from these criticisms of


orthodox theory as partial and ahistorical: how and why did subjectivist theory
become the orthodoxy? Why did the idea of the morally autonomous and
responsible subject come to occupy the heart of criminal law doctrine in the sec-
ond half of the twentieth century, despite its irrelevance over large swathes of the
criminal law in practice? In addressing this problem, Nicola Lacey has suggested
that the point to set out from is that:

The development of individual responsibility for crime is at root a response to pro-


blems of coordination and legitimation faced by systems of criminal law; the con-
tent and emphasis of these problems can be expected to change according to the
environment in which the system operates ... This starting point implies that the
most illuminating approach to criminal responsibility will be both a multi-
disciplinary and a cross-institutional one.8

Lacey identifies three areas as being of particular interest to the broad interdisci-
plinary project. First, the 'emergence of a conception of increasingly egalitarian
citizenship'; second, 'the growing influence of the medical sciences and psychol-
ogy on criminal law's understanding of human behaviour'; and third, the 'inter-
action between the rapidly expanding scope of criminal liability during the
nineteenth century..,. and the doctrinal arrangements for ascribing responsibility
to those accused of crimes'.9 In this paper I will outline some logical connections
between the first and third of these areas and the development of criminal law
doctrine. I will investigate the influence on the criminal law's historical develop-
ment of one particular aspect of its 'environment', the political sociology of citi-
zenship. In particular, I seek to show how T. H. Marshall's tripartite concept of
'modern democratic citizenship' can furnish an explanation of both the historical
emergence of the responsible subject in criminal law and the central contradiction
of modern criminal law theory that appears in the wake of this development.
This paper is not a contribution to the history of criminal law since it does not
add to the historical evidence regarding criminal law doctrine. Nor is it a direct
contribution to normative criminal law theory. Rather, it attempts to provide a
framework of political sociology in which we can make sense of what we already
know about the history and the theory of the substantive criminal law. My aim is
to explain how the antithetical forms of criminal liability prominent in the twen-
tieth century are reconciled in the citizenship concept of the welfare state, and
how that may help us to understand the substantive law's current moral and intel-
lectual difficulties. The central concern of this paper is the relation of criminal law
to the post-war citizenship concept, and this relation is abstracted from the many
other aspects of social and intellectual history which are relevant to, and which
complicate, the criminal law's development. This is done not in order to deny
the significance of these other dimensions to a full historical account of the sub-
stantive criminal law, but rather to make as clear as possible what the citizenship

8 ibid,351.
9 ibid, 362.

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Peter Ramsay

concept of the welfare state can contribute to our understanding of the specific
problems addressed here.10
I begin by reviewing a recent debate about the history of substantive criminal
law so as to identify two problematic aspects of that history which need explain-
ing. Then I suggest that the difficulties associated with defining the modern crim-
inal law identify citizenship as a key environment in which the law must
legitimate its rules. After that I outline the way in which the historical develop-
ment of the citizenship concept of the welfare state can account for the two pro-
blematic aspects of the substantive criminal law's history. Finally I compare this
sociological account with Alan Brudner's philosophical account of the criminal
law, so as to identify a source of unresolved tensions in the criminal law's contem-
porary environment.

TWO PROBLEMS IN THE HISTORY OF CRIMINAL LAW DOCTRINE

My starting point in looking at the'environment' of the criminal law


culties encountered by an existing critical account of the criminal l
places the law's 'problems of coordination and legitimation' in the con
socio-economic conditions in which criminal law operates. The mode
that only those who have in some sense willed their own violation o
should be punished, and that the punishment should be proporti
wrong, emerged in the work of the Enlightenment reformers of the
eenth and early nineteenth centuries.n In reconstructing that theory
law, Alan Norrie has demonstrated its ideological quality in that cri
relying on this conception 'protects particular social interests but doe
a language that is universal and general, and cast in terms of respect
vidual before it.'12 By treating all individuals as rational subjects whe
conditions of each vary widely, the criminal law represents the partic
cretely unequal social and economic relations in which individuals fi
selves as a question of the universal legal relations between form
abstract subjects.
Whatever the motivations of the Enlightenment thinkers, th
appealed to the rising middle classes of industrial capitalism because it
the control of those materially disadvantaged by the market econom
guage of justice consistent with free market individualism. This part
of criminal justice emerged to deal with the problems of legitimisin
punishment in the socio-economic 'environment' of industrial
However the academics, judges and lawyers who developed the mode
tended to assume it to be the'natural' form of criminal law, either by att
origins to the misty past of the common law or by simply ignorin
questions, and treating criminal law as a branch of moral philoso

10 See also text at n 133 below.


11 See A. Norrie, Law, Ideology and Punishment (Dordrecht: Kluwer, 1991) and A. Norrie, n 12 below,
esp ch 2.
12 A. Norrie, Crime, Reason and History (London: Butterworths, 2001) 23.

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The Responsible Subject as Citizen

develops this critique to show how the one-sidedness of the theory renders it
inadequate to resolving problems of moral substance and social control that con-
front the judiciary in practice. It is this which explains why, despite frequent judi-
cial endorsements of the theory in recent times,13 the judiciary has persistently
failed to rationalise the law on the basis of the principles that derive from it.14
Norrie argues for the Enlightenment origin of the subjectivist theory of liabi-
lity and critiques it as ideology. But the history of how this 'Enlightenment
reform project' came to be realised in criminal law doctrine in the period follow-
ing Beccaria, Bentham, Kant and Hegel is not one of a smooth implementation
of their ideas, far from it. The detailed history of substantive criminal law throws
up two significant problems for this account of modern criminal law as ideology.
The first is that over the course of the nineteenth and early twentieth centuries the
criminal law was developed to perform a quite different function from the adju-
dication of right and wrong implied by the Enlightenment theories, and this dif-
ferent function continues into the present. That function was the regulation of
otherwise lawful everyday behaviour, such as productive and commercial activity
or the use of public space, by means of statutory offences, prosecuted under sum-
mary procedure and often containing no fault element at all.15 Regulatory law is
less concerned with punishing wilful wrongdoing than it is with distributing the
burden of avoiding the risk of harm. It tends to socialise responsibility, rather than
focusing on individual moral agency."16 While orthodox subjectivist theory finds
it impossible to explain the regulatory criminal law as anything other than an
anomaly," a historical theory of criminal law must be able to account for the rela-
tion between regulatory criminal law and the Enlightenment ideology.

13 See, for example, Lord Bingham, Rv G and another [2004] 1 AC 1034,1055.


14 See n 12 above; see also A. Norrie, Punishment, Responsibility andJustice (Oxford: Oxford University
Press, 2000) chs 7 and 8.
15 Farmer, n 2 above, 9. A study of 7 200 offences in the 1975 edition of Stone'sJustices Manual, showed
that 3 751 of them contained no fault element, and that 107 of those offences had been enacted
before 1901, see JUSTICE, Breaking the Rules (1980). A later study of 540 offences triable in the
Crown Court showed that 244 had no criminal fault element and 123 lacked even a due diligence
defence, see A. Ashworth and M. Blake,'The presumption of innocence in English criminal law'
[1996] Crim LR 306.
16 See text at and following n 97 below.
17 See G. Leonard,'Towards a legal history of American criminal theory: Culture and doctrine from
Blackstone to the Model Penal Code' 6(2) Buffalo Criminal Law Review 691,694. For the purposes of
this paper, I include the'fair opportunity' or 'objective capacity' theory of criminal liability as part
of subjectivist orthodoxy. This theory, propounded most famously by H. L. A. Hart, (see Punish-
ment and Responsibility (Oxford: Clarendon Press, 1968) (P&R)), embraces negligence liability as
part of subjective criminal fault, and to a certain extent compromises the stark contrast between
the criminal law of subjectivist doctrine and the regulatory law of strict liability. My reason for
not giving it separate treatment from the narrower subjectivist theory (which restricts criminal
fault to advertent fault) is that the capacity theory shares subjectivism's central normative commit-
ment to the strict fairness of punishment, and to the principle of individual responsibility. Indeed
Hart claims only that the theory clarifies the meaning of subjective liability (see P&R, 157). This
view therefore still deprecates the strict liability to be found in much regulatory law (see P&R, ch
7). As a result, it suffers from the same difficulty as other subjectivist theories in this respect, in that
it cannot account for strict liability's prevalence except as expediency and error, against which
arguments need to be developed (see P&R, 181). See also n 102 below.

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Peter Ramsay

The second problem is that the subjectivist fault categories, which address the
individual as a formally equal rational choosing subject, do not really come into
their own in criminal law doctrine until the middle of the twentieth century. As
Lacey observes in her review of historically significant texts on penal law: 'only by
the 1950s has the question of individual, let alone subjective, responsibility as a
question of agency and of individual fairness become the primary focus for criminal
law commentaries'.18 This is a long time after the development of the criminal
law's regulatory function, and a very long time after both the generalisation of
market relations and the Enlightenment thinking that Norrie argues rationalises
those specific relations.
Orthodox ahistorical theories, which treat criminal law as applied moral phi-
losophy, simply lack the resources to explain the relative historical novelty of their
concerns. Lacey observes that at most they adopt 'a weak historical thesis' which
treats criminal law doctrine as 'The Story of Enlightenment'.19 The most detailed
history of the development of the criminal law's conceptions of fault and moral
agency, by K. J. M. Smith, is arguably one example.20 Smith eschews theorisation
of the historical record.21 In so far as he offers a positive explanation as to why
judicial endorsement of subjectivist fault categories only occurs in the 1950s, he
points to the 'clarity' provided by the particular theorists of the time, notably
Turner's '1930s subjectivist crusade' which was 'later boosted by [Glanville]
Williams's analytical rigour'.22 Historical theories, however, must be able to explain
the long time-lag between the initial articulation of Enlightenment ideas, their
appeal to reform-minded Victorians and their actual influence in criminal law
doctrine in terms that go beyond the intellectual merits and limitations of the
different theorists and their audiences.
These difficulties lead Lindsay Farmer to criticise not just conventional analy-
tical criminal law theory, for being blind to the historical relativity of the moral
categories it assumes, but also Norrie's critique of the criminal law's ideological
character. Farmer argues that Norrie's critique takes the subjectivist account of
the criminal law too seriously. For Farmer, orthodox criminal law theory isolates
parts of the substantive law to be studied as a form of applied moral philosophy
called 'criminal law', in contrast to all the issues of public policy which are to be
studied as 'criminal justice'.23 Farmer reconstructs the development of Scots crim-
inal law in the nineteenth century to show that history cannot support ortho-
doxy's distinction between law and policy. He shows that the substantive rules of
liability did not pre-exist or develop in isolation from the requirements of state
administrative policy as expressed in the development of summary procedures,
public order policing and the expanding scope of criminal law regulation over
everyday life. The orthodox assumption that individual justice is the core value
of the criminal law therefore treats strict liability, with its tendency to socialise

18 n 1 above, 360 (emphasis original).


19 ibid, 357.
20 K. J. M. Smith, Lawyers, Legislators and Theorists (Oxford: Oxford University Press, 1998).
21 ibid,5.
22 ibid, 371. Although he does set out the doctrinal obstacles to earlier change, see n 69 and text at n 70
below
23 n 2 above, 7.

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The Responsible Subject as Citizen

the burden of responsibility, as anomalous despite not only its historical preva-
lence, but also its historical priority. But Farmer's criticism includes not only
orthodoxy but any theory which takes as its 'starting point' the existence of a
'special relationship between criminal law and moral philosophy':24

The point that I want to make is not simply that the pre-eminence of individual
responsibility is ideological, though there is an important sense in which it is, but
that the analysis in these terms does not attempt to understand the historical devel-
opment of the law.25

By contrast with Norrie's account of law as ideology, Farmer's history of the reg-
ulatory aspects of the criminal law draws attention to the central concern of crim-
inal justice policy with public order and the management of risk. Farmer suggests
that emphasising the ideological aspect of doctrine's concept of individual respon-
sibility and 'individualised justice' evades the true history of criminal law. From
the mid-nineteenth century, the focus of the historical development, he suggests,
was 'increasingly on the regulation of conduct rather than the adjudication of
right or wrong' with which doctrine was so concerned.26 He argues that it is only
by setting out from a historical account of the law in these terms that its historical
development can be understood.
But Farmer is here pressing his excellent history into serving an argument
which is as one-sided as the orthodox approach. By divorcing the critique of
ideology and historical understanding, and setting them in opposition to each
other, Farmer suggests that ideology is a thin concept meaning little more than a
fiction. Norrie's concept of ideology is richer, more specific, and demands that, for
a theory to be an ideology, it must be more than a mere fiction. The ideological
aspect of the doctrine of individual criminal responsibility is the form in which
particular interests are represented by the doctrine as a universal interest. Under-
stood in this way the doctrine is ideological because it legitimates institutions
socially and politically. An ideology in this sense cannot be entirely unfounded,
as a mere theory might be, since it could not have this legitimising effect without
some grounding in real social practices. So to specify the ideological character of a
doctrine is to specify those aspects of social relations to which it pays attention and
those to which it does not. For this reason, to critique a doctrine as an ideology is
to locate it somewhere specific in history, and that is a prerequisite of understanding
its historical development, which is to say of explaining why it developed into a
dominant doctrine at a particular time and place. Without the ideological aspect of
a doctrine as a guide, the theorist will lose sight of the specific moment in history
which it is the task of any historical analysis to explain. And this is in fact what
Farmer does. He presents an account which anachronistically imposes a contem-
porary concern on to the past. Contemporary society may well have developed
an overriding concern with risk management to the exclusion of individual

24 ibid, 5.
25 ibid, 173.
26 ibid, 140.

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Peter Ramsay

responsibility.27 Moreover, the origins of this concern may be found in the nine-
teenth century, and it may even be reflected in the criminal law of that period. But
other forces were also at work in nineteenth-century politics and administration,
and, as Norrie has argued, Farmer is one-sided and ahistorical to project the cur-
rent emphasis back into the past.28
The consequences of this one-sidedness emerge clearly if we consider Farmer's
treatment of the second problem for Norrie's account. In the second half of the
twentieth century, concern for individual justice, and the fault categories that sub-
jectivist theory prefers, became orthodoxy as they were endorsed by the judiciary
and by parliament over a range of criminal offences (such as murder, non-fatal
offences against the person, criminal damage and sexual offences). Farmer recog-
nises that his own history of the criminal law cannot simply ignore doctrine's
concern with justice and individual responsibility. Farmer explains the emergence
of orthodox doctrine as an overreliance on the particular example of homicide in
providing a model for criminal offences generally. Moreover, Farmer argues that
the emergence of murder as a crime in which cognitive intention had to be proved
was 'not, as is often assumed . . . representative of laissez-faire government and
rampant individualism. The criminal law sought to build character and teach
social behaviour by laying down duties and responsibilities in the control and
regulation of risky activities and behaviour'.29 But, even assuming this is an accu-
rate account of the emergence of the modern law of homicide, the question which
remains to be answered is why should the 'teaching of social behaviour' and the
'regulation of risky activity' take the form of criminal offences which construct
defendants as responsible individual subjects? Farmer argues that:

There was not so much a displacement of a system of individualised justice as a


reordering. Individual justice remained important, but only within an overall con-
cern with the management and production of social and legal order. It is this that is
characteristic of the modern criminal law. The true origins of the modern law must
be sought in the system that emerged in the late nineteenth century.30

But this approach evades precisely the question that must be answered if the law's
historical development is to be explained rather than just described: why does indi-
vidual justice 'remain important' when the overall concern is 'with the manage-
ment and production of social and legal order'? Insisting on individual moral
responsibility is not the only conceivable route to social and legal order. To answer
this question, it will indeed be essential to understand 'the system that emerged in
the late nineteenth century'. But it will also be necessary to grapple with why, in
the mid-twentieth century, the judiciary and the legislature adopted the model of
homicide law over a small but very significant range of offences, while the theory
that justified the new doctrine was able to take and maintain its position as the

27 The 1980 study of English law cited at n 15 above showed that 78 per cent of strict liability offences
had been enacted since 1961 and 90 per cent since 1941.
28 Norrie, n 14 above, 55.
29 n 2 above, 158.
30 ibid, 140.

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The Responsible Subject as Citizen

dominant legal ideology, despite offering what was from the beginning a plainly
one-sided version of the reality of criminal justice.
Norrie has argued, in response to Farmer, that the historical task is 'to under-
stand the interface between issues of moral agency and the socialisation of respon-
sibility'.31 Orthodoxy tends to ignore that interface by treating those criminal
laws which tend to socialise responsibility as anomalous to the law's central aim
of protecting autonomy and agency. Farmer, on the other hand, tends to elimi-
nate the interface by reducing moral agency to a useful fiction which facilitates the
administrative distribution of responsibility for risk-creation. My aim is to try to
understand the interface by identifying the environment in which moral agency
and the socialisation of responsibility are both necessary aspects of a legitimate
criminal law. My argument is that the environment in which both are necessary
is that of the rights and duties of citizenship in the democratic welfare state. More-
over, I will argue, that understanding the substantive criminal law in the context
of the history of modern citizenship also helps to explain why the ideology of the
Enlightenment reform project achieved doctrinal pre-eminence when it did. It is
citizenship which provides an environment which mediates between the wider
social and economic changes of the nineteenth and twentieth centuries and the
criminal law.
Before looking at these specific problems, however, I will introduce the idea of
citizenship and its relevance to the criminal law of the post-war period by looking
at the problem of the definition of criminal law during that period.

CRIMINAL LAW AND THE DUTIES OF CITIZENSHIP

In 1955, at the time subjectivism was achieving its orthodox status, o


ing protagonists, Glanville Williams, wrote a celebrated article
reviewed the failed attempts of earlier writers to provide a definitio
law in terms of its substantive content. Williams drew the conclusi
'formal definition' of criminal law was possible:

A crime is an act capable of being followed by criminal proceedings h


inal outcome, and a proceeding or its outcome is criminal if it has cert
istics which mark it as criminal.32

Farmer speaks for many others when he derides Williams' definitio


fully circular'.33 For where there is any doubt as to the proper des
valid law, the only guidance a judge or anyone else will get from t
is that a law will be a criminal law when the criminal procedure app
formal definition has also been criticised as 'unilluminating, for it gives
of what kind of social practice is thus identified'.34 The definition te

31 A. Norrie,'Subjectivity, morality and criminal law' (1999) 3 Edinburgh Law Review 3


32 G. Williams,'The definition of crime' [1955] Current Legal Problems 107,130.
33 L. Farmer,'The obsession with definition' (1996) 12 Soc & Leg Studs 57, 58.
34 N. Lacey, C.Wells and 0. Quick, Reconstructing Criminal Law, (London: Lexis Nex
2003) 6.

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Peter Ramsay

about the content of the human activities subject to the criminal law. However,
for Farmer its very inadequacy reveals some truth about the criminal law:

That the criminal law can ... be defined only according to the positive criterion of
whether an act is tried under criminal proceedings simply reflects the diversity of
functions of law in the interventionist state. There is no single, simple moral or
other purpose that is capable of holding the whole together.35

The problem with this line of criticism is that Williams' formal definition is not
strictly speaking circular. For as long as criminal proceedings have specific features
that mark them out from other legal proceedings, then the formal definition
identifies criminal offences in terms which are specific and do not include the
term criminal offence. As we noted above the definition does not provide ajudge,
or anyone else, with any criteria by which a valid law can be identified as criminal,
should parliament omit to lay down the procedure to be followed.36 This weak-
ness makes the definition of very limited practical use, for it is a definition that fails
to identify why any particular law should be regarded as criminal. But that does
not make it circular.37 On the contrary, the formal definition has itself a specific
content which is different from that of any substantive law - the criminal proce-
dure and criminal outcome.
My purpose here is not to defend the formal definition against others; my pur-
pose is not concerned with definition as such. Rather, it is to understand what the
formal definition can usefully tell us about the law of the period in which it was
worked out and enjoyed influence.38 If we take Williams' formal definition as our
starting point for understanding the criminal law of the period about which he
wrote, we can identify citizenship as an environment in which the apparently
contingent diversity of the content of the many particular criminal laws finds a
degree of coherence.While the criminal law's'purpose' may not be'simple', we can
see citizenship as a specific framework which lends an overarching unity to a sig-
nificant part of the criminal law, if not necessarily to all of it.
At the point at which Williams was writing (and still today) the criminal pro-
cedure, by which he defined the substantive criminal law, contained a number of
distinctive elements. The rules of evidence impose on the prosecution a standard
of proof of 'beyond reasonable doubt'39 and restrict the use of certain sorts of
evidence. Conviction gives rise to a power to punish the offender. While penal
sanctions may be diverse, and financial penalties, and even imprisonment, may
be available in some civil contexts, a criminal offence will combine the standard
of proof and evidence restrictions with the availability of penalties on a finding
against the defendant.

35 n 33 above, 66.
36 A point conceded by Williams, see n 32 above, 130.
37 See also ibi4 125.
38 I am not making a general argument about penal obligations. In this paper, the argument is
intended to apply to the criminal law of the postwar period and problems specific to it.
39 See Rv Lawrence [1933] AC 699 707. The standard is used in only a very few types of civil trial, see n
42 below.

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The Responsible Subject as Citizen

However, while the prosecution is procedurally burdened in this way in crim-


inal trials, it is nevertheless the state which enjoys ultimate control over criminal
proceedings. A critical difference between a civil and a criminal wrong is that, in
the latter,'the initiative in bringing the matter to the court is taken ... by society
as a whole through its customary organs or representatives', and even in a private
prosecution, brought by the victim of a crime,'the victim takes the initiative as the
representative of society as a whole'.40 The merely representative role of the private
prosecutor in criminal proceedings is expressed in the rule that the private prose-
cutor may not discontinue the litigation at will,41 and in the wide discretionary
power of the Attorney-General to enter a nolle prosequi, thereby taking over and
discontinuing the litigation.
These two specific aspects of criminal proceedings, the relative burdening of
the Crown on the one hand, and its control over the prosecution, on the other,
reflect two aspects of the relation of criminal law to citizenship.
First, the combination of penal sanction on conviction and procedural burden
on the accuser emphasises that criminal law is that law in which the coercive
power of the state over the natural or legal individual is the most prominent
aspect.42 The procedural burden addresses the intrinsic seriousness of an accusa-
tion of this sort and the potential inequality of arms between the parties. While
this does not illuminate what the content of criminal laws will be, it does empha-
sise a point made by Ian Dennis in relation to a criminal code:

It is in a sense the most direct expression of the relationship between a state and its
citizens, containing as it does a set of official notices of the conduct which the state
prohibits its citizens from engaging in.43

Even where, as in the UK, the state provides no single set of notices, the criminal
law still provides 'the most direct expression of the relationship between a state
and its citizens' by laying down'the conduct which the state prohibits its citizens
from engaging in' (and the conduct the state requires of citizens). We should refer
to individuals in this context as 'citizens', rather than as 'subjects' or just 'indivi-
duals', because, as we shall see in greater detail below, in a society such as postwar

40 P. Birks,'The concept of a civil wrong' in D. Owen (ed), The Philosophical Foundations of Tort Law
(Oxford: Clarendon Press, 1995) 40.
41 Wood (1832) 3 B & Ad, 657.
42 See J. Bentham, OfLaws in General, (London: Athlone, 1970) 218-19. This view is strengthened by
the courts' decisions about the standard of proof in what they regard as civil cases. On the one
hand, in civil proceedings where proof of some relevant fact would amount to proof of acts which
amount to a criminal offence, the courts have generally eschewed the criminal standard. Excep-
tionally they have adopted it in solicitors' disciplinary tribunals (Re A Solicitor [1991] NLRJ 1447).
See I. Dennis, The Law ofEvidence (London: Sweet & Maxwell, 2002) 395-399. On the other hand,
the criminal standard is required for proofof civil contempt (ReBramblevaleLtd [1970] Ch 128), and
for ASBO applications (R (McCann and Others) v Crown Court at ManchesterandAnother [2003] 1 AC
787). It is striking that civil contempt and ASBO applications are the civil proceedings with the
most severe potential consequences for the liberty of the defendant, consequences which will
usually have punitive effect (on contempt see C. Miller, 'Proof of civil contempt' (1996) 112
LQR 539). While this suggests the fuzziness of the civil-criminal boundary for definitional pur-
poses, it underlines the argument made here.
43 n 6 above, 247.

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Peter Ramsay

Britain, the overwhelming majority of those individuals who were subject to the
duties of the criminal law were citizens. They enjoyed the formal status of citizen-
ship, which means that they enjoyed rights which embodied 'official recognition
of[their] integration into the political system' ;44 they were officially recognised as
'full members of the community'.45
The second defining characteristic of criminal proceedings, the state's control
of the initiative, draws attention to the fact that a significant part of the duties
upon citizens imposed by the criminal law concerns wrongs against this citizen-
ship status, against the conditions of 'full membership of the community'. Under
the formal definition, criminal offences, whatever else they may be, are not mat-
ters to be settled by compensation between a wrongdoer and a victim of the
wrong, nor can they be pursued or compromised solely at the will of such parties.
By granting the state the right to control the proceedings, so that the private pro-
secutor is only the state's representative, the rules of criminal procedure declare
that it is the public's or the state's interest in criminal wrongdoing rather than that
of any individual victim that is ultimately decisive. Wrongs in which the state's
interest will predominate naturally include those in which direct harm to the state
is caused by an individual, such as treason. But far more criminal offences have as
their immediate object some injury, or the creation of a risk of injury, to other
individual persons. The interest of the state in a wrong or an injury committed
directly against an individual person arises where that injury in some way inter-
feres with the conditions which ensure that person's integration into the political
system, with their 'rights' as a full member of the community, with their citizen-
ship. When somebody violates the rights of citizenship, she wrongs the public as
well as the individual concerned, for she undermines the integrity of the political
community.46 Indeed, where it is believed the conditions of communal integrity
will be undermined by acts which involve no direct harm to another or only the
creation of a risk of harm, there need be no other individual directly concerned,
apart from the offender.47 Wrongs against the status of citizenship are wrongs that
go beyond the private interests of any immediate victim, engaging those of the
state and invoking criminal procedure.
These points will be developed further in what follows. For now we should
note that the formal definition, in its very formality, reminds us that citizenship
supplies the immediate environment of a significant part of the modern criminal
law, the environment in which the modern criminal law experiences its problems

44 M. Havens, cited in D. Heater, Citizenship (Manchester: Manchester University Press, 2004) 251.
45 T. H. Marshall, Citizenship and Social Class (London: Pluto Press, 1992) 18.
46 An analogous idea is proposed as a normative basis of criminalisation by S. E. Marshall and R. A.
Duff,'Criminalisation and sharing wrongs' (1998) CanadianJournal ofLaw andJurisprudence 7. How-
ever they explicitly limit the application of their notion of criminal wrongs, as wrongs, which are
shared between the individual victim and the wider community, to a particular communitarian
concept of political community which they elaborate (ibid, 20). The relation of their political the-
ory to that of T. H. Marshall's concept of citizenship is beyond the scope of this paper, which is
concerned with the historical influence of the citizenship structure whichT. H. Marshall theorized.
47 Birks observes that by contrast to 'criminal', '[t]he word "civil" thus supposes a plaintiff who can
claim to have been the victim of the wrong' (n 40 above).

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The Responsible Subject as Citizen

of coordination and legitimation.48 The criminal law can resolve those problems
in so far as it gives expression to the ruling concept of citizenship; that is to say, by
developing in a way that is consistent with what the wider political culture
regards as the proper relations between state and citizen, and between citizens.49
Thus we cannot know ingeneral the form and content of the behaviour which will
undermine the integrity of the political community; this will depend on the rul-
ing concept of citizenship at any one time and place. But we can know that the
contours of legitimate penal obligations will be dependent to some considerable
extent upon the ruling conception of citizenship. Any particular concept of citi-
zenship will legitimate some contours of penal obligation and not others. For this
reason, it is in the environment of citizenship that we may be able to resolve the
two problems which are posed by the history of criminal law doctrine. Through
an understanding of the development of citizenship we can find both a histori-
cally specific concept in which the apparently diverse and contradictory forms
and functions of modern criminal law find a degree of unity, and an explanation
of the long-delayed implementation of the Enlightenment reform project in
criminal law doctrine.
To get to grips with these specific problems we need to consider them in the
light of the particular citizenship concept that was dominant at the time during
which they were experienced. That concept was elaborated byT. H. Marshall in a
1949 lecture, later published as Citizenship and Social Class. Although its continued
significance is a matter of much debate,so Marshall's theory was at its most influ-
ential in precisely the period in which subjectivist theory became the orthodoxy
in criminal law doctrine.5s It remains the 'starting point' for discussions of citizen-
ship in the UK in the contemporary period,52 not necessarily because it accurately
describes what the post-war welfare state achieved, but because it was the most
influential formulation of what the welfare state's proponents thought that it
could and should achieve.53
In Marshall's concept of modern democratic citizenship, 'full membership of
the community' comprised three 'elements': civil, political and social. He sum-
marised each of them as follows: the civil element was 'composed of the rights
necessary for individual freedom'; the political element was 'the right to partici-
pate in the exercise of political power, as a member of a body invested with

48 To be clear, I am not trying to smuggle in a content-based definition of the criminal law here. I
am not claiming that citizenship conditions are exhaustive of criminal wrongs. The state may
have other goals which can be pursued by the technique of criminalisation.
49 I use the term'political culture' broadly in something like the original sense given it by Almond
and Verba - 'the political system as internalised in the cognitions, feelings, and evaluations of its
population' - cited in L. Friedman, The Legal System: A Social Science Perspective (NewYork: Russell
Sage Foundation, 1975) 15.
50 See generallyJ. Barbalet, Citizenship (Milton Keynes: Open University Press, 1988); D. Oliver and
D. Heater, The Foundations of Citizenship (Hemel Hempstead: Harvester Wheatsheaf, 1994) 31-36;
and P. Dwyer, Welfare Rights and Responsibilities: Contesting Social Citizenship (Bristol: The Policy
Press, 2000) 50-62.
51 See Barbalet, ibid, 11.
52 See Commission on Citizenship, Encouraging Citizenship (London: HMSO, 1990); also Dwyer, n
50 above, 50.
53 See M. Katz, The Price ofCitizenship: Redefining theAmericanWelfare State (NewYork: Henry Hold &
Co, 2001) 343.

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Peter Ramsay

political authority or as an elector of the members of such a body'; the social ele-
ment was 'the whole range from the right to a modicum of economic welfare and
security to the right to share to the full in the social heritage and to live the life of a
civilised being according to the standards prevailing in the society'.54 Marshall
argued that, in their modern incarnations in Britain, the civil element emerged
first (in the eighteenth century),5" the political second (in the nineteenth and
twentieth centuries), and the social element last (in the later nineteenth and the
twentieth centuries).56
In the next section I will suggest that it is the relation of the first two elements,
the civil and the political, that can account for the relatively recent historical emer-
gence of the doctrine of the responsible subject as the orthodoxy in criminal law.
After that I will turn to the interface between the criminal law of responsible sub-
jects and moral agency, on the one hand, and that of socialised responsibility, on
the other. I will argue that this interface arises from, and its tensions and difficul-
ties are legitimated by, the interaction of Marshall's first two elements, civil and
political, with the third, social citizenship.

POLITICAL CITIZENSHIP, MORAL AGENCY AND PRIVATE JUSTICE

To understand the problem of the historical origins of the responsible subject of


criminal law, it will help to consider the doctrine's ideological character in a little
more detail. The criminal law plays a fundamental role in defining the civil rights
of the individual by defining those duties breach of which will render the indivi-
dual liable to punishment. In this way the criminal law defines an outer limit of
civil rights, and violation of that outer limit gives the state a right to interfere with
an individual's enjoyment of those rights. What the subjectivist doctrine of the
responsible subject achieves is to present this distribution of duties as a set of neu-
tral rules of universal application. Everybody is equal under them because
nobody is liable unless they have formally chosen to violate the law. Subjectivist
doctrine considers any individual only as an abstract will, as a responsible choos-
ing subject, that is only from the standpoint of her formal equality with every
other. For that reason, at its narrowest, subjectivism requires that a person can
only be criminally liable where she has either intended the prohibited conduct
or result, or consciously run an unjustifiable risk that it will occur. These cate-
gories are factual accounts of cognitive states of mind as opposed to substantive
moral evaluations of actions or motives. Norrie notes their intellectual origin in
Kant's theory ofjustice and describes them as a'morality of form'.57
The limitations of this formal equality are well known. In the concrete lives
lived by different individuals, a vast degree of substantive inequality may subsist
despite this formal equality of rights, and this substantive inequality may have

54 n 45 above, 8.
55 Although the extent of legal protection for many civil liberties before the twentieth century was
in fact very limited, see K. Ewing and C. Gearty, The Struggle for Civil Liberties (Oxford: Oxford
University Press, 2000) ch 1.
56 n 45 above, 10-13.
57 n 14 above, 8.

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The Responsible Subject as Citizen

nothing to do with individual choice. It may instead be a result of differential


access to property, to employment, to education and so on; and this differential
will often be a consequence of social structures beyond the control of any indivi-
dual. A social order founded on private property and market relations, which
tends systematically to material inequalities, can thus be legitimated by the uni-
versal language of formal equality deployed by orthodox criminal law theory and
the doctrinal categories it supports. This is of particular significance in so far as,
empirically, conviction and punishment for crime are positively correlated with
social and economic disadvantage. Norrie argues that for the law's categories to
legitimate punishment and control in circumstances of social inequality:

The presentation of law as a universal and formal discourse must exclude the possi-
bility that the legal categories are the product of a prior process of socio-political
differentiation.58

Theoretical and doctrinal emphasis on formal equality and universality is a pro-


cess of excluding substantive inequality from the question of criminal liability
and its fairness. In order to ensure that the 'prior process of socio-political differ-
entiation' does not itself become an issue in determining the justice of punish-
ment for breach of the criminal law, the criminal law comes to focus on purely
formal fault categories of cognitive intent and subjective recklessness. These
Kantian fault categories will tend to keep politics out of the criminal courts. For
as long as it is necessary that punishment is seen to be fair to the individual, despite
its overwhelming concentration among the poorer members of society, the exclu-
sion achieved by the Kantian 'morality of form' will be a necessary aspect of
legitimation. The alternative is for the normal operations of criminal justice, in
one way or another, to call into question the justice of the social order.
But under what circumstances does punishment by the state have to be fair to
the individual despite social inequality, or at least seen to be fair? The state may, for
example, represent itself as a state of the propertied, ruling politically over those
without property. This would be a reasonable characterisation of the British state
before the reform acts of the nineteenth century. The 'Lockean' state openly pre-
sented itself as 'a product of a prior process of socio-political differentiation'. While
justice played an important ideological role, it was conceived of in an environ-
ment dominated by direct personal relationships of patronage and mercy, in
which far less abstract rationalisation and consistency was required for the law to
appear just.59 In this environment the emphasis of criminal law doctrine was quite
different to the contemporary concern with the fairness of punishment. For
example, in the eighteenth century, Blackstone conceptualised criminal offences
as 'public wrongs'.60 Blackstone's emphasis was on the substantive values and
interests which the public sought to protect by means of particular criminal
offences.61 Lacey shows that Blackstone's focus was, therefore, upon particular

58 n 12 above, 87.
59 See D. Hay,'Property, authority and the criminal law' in D. Hay et al, Albion's Fatal Tree (London:
Allen Lane, 1975) 38-39.
60 W Blackstone, CommentariesVol IV (London: Strahan Cadell, 1783).
61 See Lacey, n 1 above, 359, and n 2 above, 23-25.

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Peter Ramsay

criminal acts rather than general categories of fault. An accused's fault was to be
found in the moral quality of her act. For Blackstone, criminal acts betrayed a
vicious will because they were wicked acts.62 Moreover, Lacey argues that in the
eighteenth century, if a defendant's responsibility for a criminal act was considered
as an issue, it appears that it was her 'character and reputation' rather than cognitive
or volitional capacities that were decisive.63
In the nineteenth century, as direct personal relationships gave way to the free
market in labour, reform and rationalisation of the criminal justice system
proceeded. David Garland shows the very direct expression that the practice of
punishment gave to the utilitarian concepts of abstract equality and rational sub-
jectivity which inspired the penal reform movement.64 Moreover, the dominant
twentieth-century view of mens rea in the terms of intention, knowledge of an
unjustified risk and negligence, with its emphasis on the moral significance of
the difference between advertent and inadvertent fault, makes its appearance in
the work of nineteenth-century theorists, and of the Criminal Law Commis-
sioners who laboured to reform the criminal law in the 1830s and 1840s.65 But
the Commissioners' proposed substantive reforms never made it to the statute
book,66 and older ways of conceptualising criminal responsibility persisted in
the criminal courts. According to Smith, the fault concepts deployed in the courts
were 'saturated with moral resonances, making the normative judgement almost
infinitely imprecise, both for judge and jury', while the function and substance of
mens rea doctrines 'remained almost totally judicially unaddressed' throughout the
nineteenth century.67 Lacey observes that the seminal expository works by James
Fitzjames Stephen of the mid to late nineteenth century remain'rooted' in the old
view that the moral quality of an act presumptively discloses the will of the
actor.68 At the level of procedure and doctrine, there were numerous legal obsta-
cles to judicial development of the modern cognitive fault categories. 69 But Smith
notes in passing that, in relation to criminal fault, the judiciary experienced no
compelling practical grounds for change'.70 For as long as there was a property
qualification for voting, the state presented itself as the state of the propertied, as
embodying their substantive values and interests. The criminal law, which justi-
fied punishment, could continue to presume the character of the individual will

62 ibid, 23.
63 See N. Lacey,'Responsibility and modernity in criminal law' (2001) 9Journal ofPolitical Philosophy
249-257.
64 D. Garland, Punishment and Welfare (Aldershot: Gower 1985) 17-18.
65 See Smith, n 20 above; and R. Cross,'Reports of the Criminal Law Commissioners (1833-1849)
and the abortive bills of 1853' in P. Glazebrook (ed), Reshaping the Criminal Law (London: Steven &
Sons, 1978) 16.
66 The reforms were killed offin large part by judicial hostility, although judicial criticism was over a
much wider front than the mental element, see Glazebrook, n 65 above, 9.
67 Smith, n 20 above, 159 and 372.
68 Lacey, n 2 above, 28. Stephen himself nevertheless unsuccessfully supported reform of fault ter-
minology in a number of areas, see Smith n 20 above, 143-50.
69 The most significant, for both Smith (n 20 above, 160 and 166-171) and Lacey (n 1 above, 367), is
the persistence of the evidential presumption that the natural consequences of an action are
intended.
70 n 20 above, 370.

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The Responsible Subject as Citizen

from the substantive wickedness of the act, and therefore to promote particular
values, without experiencing problems of legitimacy which were specific to the
criminal law, as opposed to problems which afflicted the wider political system.71
The criminal law of substantive values, and explicit moral evaluation of a defen-
dant's conduct, experiences specific problems of legitimacy only once the prop-
erty qualification itself ceases to be politically tenable and gives way to universal
suffrage.
It is only with universal suffrage that the state itself formally ceases to embody
socio-political differentiation, and instead acquires a claim to social neutrality.
Private property and social division are abolished from the concept of the state
'when the propertyless come to legislate for the propertied'.72 The state now
acquires authority on the grounds of its universality, as a sphere in which abstract
choosing (ie. voting) individual citizens hold sway. The abolition of social division
in this purely formal way from the political sphere, however, presupposes that the
citizens of the state actually live in a socially divided civil society, and have different
interests, values and social experiences.73 This peculiar aspect of the democratic
state - that social differentiation is at once abolished in the abstract and presupposed
in concrete political practice - is precisely the environment in which that specific
problem of legitimation experienced by the criminal law, the problem of the fair-
ness of punishment, the problem which is ideologically resolved by the Enlight-
enment categories, is unavoidably posed. For it is only in the democratic
environment that the equal citizenship status of the accused in a criminal trial
acquires its full ideological significance. Where the state recognises every adult
regardless of property status as a citizen for political purposes, the criminal law must
exclude the prior process of socio-political differentiation from the rules determin-
ing liability to punitive coercion by the state. In the terms of T. H. Marshall's
account of modern citizenship, equal citizenship in its political aspect implies equal
status in civil rights. In a pluralist democratic environment, to continue to uphold
particular substantive values in doctrine by imposing liability for 'wicked acts'
would entail judicial promotion of those particular values, undermining the law's
claim to universality and democratic authority.74 Orthodox subjectivism's'morality
of form', on the other hand, provides a better justification of punishment in a
democracy because it represents punishment as a vindication of the offender's

71 It is for this reason that Franz Neumann, writing in the 1930s, observed that while the common
law in the eighteenth and nineteenth centuries could develop private justice, with its emphasis on
fairness to the parties, to a high degree in the legal relations between the propertied, those legal
relations which for the most part in practice arose between the state and those without property
did not need to reflect private justice but rather could embody public values. See The Rule of Law,
(Leamington Spa: Berg, 1986) 265.
72 K. Marx,'On the Jewish question' in Karl Marx Early Writings (Harmondsworth: Penguin 1975) 219.
73 ibid. It is for this reason, Marx observes, that parliamentary 'representatives' are not formally man-
dated by their electors (for then they could not formally serve the 'public interest' but only the
particular interests which elected them), while in practice those representatives anyway always
represent particular interests rather than any abstract public interest (see'Critique of Hegel's Doc-
trine of the State' in Early Writings, ibid, 193-94).
74 See also Lacey, n 2 above, 33.

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Peter Ramsay

own status as a citizen,75 of her formal equality with all other citizens. Let's look at
how the modern criminal law achieves this construction.
Punishment will not be a vindication of a defendant's status as a citizen in its
civil aspect if it is imposed merely because she has infringed another's civil rights.
An offender must, in addition to wronging her victim, deny to her victim the
equal status of civil citizenship as such and, thereby, reciprocally deny her own
status. Such an offence to civil citizenship status will only occur when an indivi-
dual deliberately does one of a fairly narrow range of acts. Civil rights are 'the
rights necessary for individual freedom',76 established in part by protection of
the individual's right to dispose of her own person and property. The accused will
only deny that status of equal freedom where she shows 'disrespect for the victim's
freedom of choice'.77 In the first place, this can be done only if she commits one of
those offences which prohibit wrongs whose prohibition is among the sine qua
non conditions of citizenship in its civil aspect. Alan Brudner describes these
offences as that 'very narrow segment of the penal law of the modern, regulatory
state' which is concerned to protect freedom of choice, and, therefore, excludes
consideration of harm from the concept of criminal wrong (however much it
may include them in the grading of a particular offence or the measure of
punishment).7" For example, it is still homicide to kill a person even if in doing
so you would spare them the harm of living with a very painful, disabling and
terminal condition;79 it is a battery to touch a person without their consent
though they are unharmed;"8 it is theft dishonestly to appropriate ?10 from a bil-
lionaire with the intent permanently to deprive, though it would be idle to speak
of the theft causing its victim any harm. While doubtless there may be argument
about what belongs in this category as we approach its margins, it includes at
minimum the conduct elements of homicide, assaults, rape, theft, fraud, robbery,
burglary, and criminal damage. In the second place, for such conduct to amount
to disrespect on the defendant's part for freedom of choice, and therefore for civil
citizenship status as such, rather than a mere infringement of another's particular
right, the commission of one of these offences must be wilful. In these offences,
equality of citizenship rights implies a model of individual private justice in crim-
inal law, which is concerned to ensure that only those who have deliberately
denied the civil rights of citizenship are punished.
The decline of the public value of private property in the criminal law and the
emergence of the private justice model of the modern categories of mens rea is illu-
strated by the different assumptions found in eighteenth-century arguments
excluding necessity as a defence to larceny when compared with the modern gen-
eral exclusion of motive. Blackstone directly invokes property rights when he
interprets the putative defence of poverty as an appeal to natural right which must

75 The penal theory is Kant's, the formulation is adapted from G. Hegel, The Philosophy of Right
(Oxford: Oxford University Press, 1967) 71.
76 Marshall, n 45 above, 8.
77 A. Brudner, 'Agency and welfare in the penal law' in S. Shute, J. Gardner and J. Horder (eds),
Action and Value in the Criminal Law (Oxford: Clarendon, 1993) 24.
78 ibid, 25.
79 See, eg R (Pretty) v DPP [2002] 1 All ER 1, 26.
80 See, eg Collins v Wilcock (1984) 79 Cr App R 229.

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The Responsible Subject as Citizen

be excluded if there is to be any security of property.81 Private property is here a


public value, which according to Blackstone, the criminal law explicitly seeks to
uphold even where to do so draws direct attention to material inequality, as it
would in circumstances of necessity. By contrast, modern subjectivist doctrine
distinguishes motive from intention in general, and makes no direct defence of
private property rights in justifying its rules of liability. Rather, in seeking to
exclude the law's moral and social context from consideration, subjectivism impli-
citly concedes that there might be a moral problem with finding a defendant liable
in some factual contexts.82 This positivist approach protects the fact of private
property, in so far as theft remains a criminal offence, without doctrinally extend-
ing any special formal status to property rights as such.83 This seems to be the
appropriate ideology for the public law under the modern democratic state, in
which private property is both formally abolished as a criterion of full citizenship,
while being presupposed in the state's very existence.84
This logical relation between universal suffrage, and the emergence of a forma-
lised subjectivist approach to mens rea accounts for three historical points noted by
Norrie: first, that the criminal law lagged behind the civil law in its adoption of
liberal principles; second, that the penal reformers' theories began to have an
impact on the 'practical quality' of the criminal law from the late nineteenth to
the mid-twentieth centuries (precisely the period that saw the maximum exten-
sion of the suffrage); third, that access to justice and liberal democracy were
important practical influences on the legal development in this later period.85
My claim here is that democracy was more than a practical influence. Democracy
necessitated the adoption of the responsible subject of criminal law as orthodoxy.
In so far as the formal extension of the suffrage remains politically contested, it
does not automatically lead to subjectivism's systematic adoption in doctrine. For
a period the actual practice of criminal law may remain tied to the imposition of
older public values as well as private justice. Nevertheless, once universal political
rights are securely established and effective, the responsible subject is a logically
inescapable and necessary figure for doctrine, and, as a consequence, subjectivism's
rise to orthodoxy coincides historically with the substantial influence of mass
democratic politics. From this point of view, it is no mere contingency that, as

81 '[F]or men's properties would be under a strange insecurity, if liable to be invaded according to the
wants of others; of which no man can possibly be an adequate judge, but the party himself who
pleads them' W Blackstone, Commentaries 1769 ed (Chicago: University of Chicago Press, 1979)
IV, 32.
82 The modern law of theft gives the entire problem over to the jury in its largely unguided assess-
ment of the 'honesty' of a person's appropriation of property belonging to another, see Rv Ghosh
[1982] QB 1053.
83 Indeed Glanville Williams objects that the Ghosh test is more subjectivist than is strictly necessary
to recognise potential necessity defences to theft, see Textbook of Criminal Law (London: Steven &
Sons, 1983) 726-27. The House of Lords has however continued to pursue the underlying
approach of regarding theft as an offence of subjective dishonesty rather than objective disrespect
for property rights, see in particular Rv Hinks [2000] 4 All ER 833.
84 The positivist distinction between law and morality thus underpins the subjectivist doctrine of
fault while the positivist distinction between a law's validity and its content underpins the formal
definition of criminal law. In their positivism, both of these aspects of Glanville Williams's con-
tribution to doctrine give expression to the pluralism of the democratic era.
85 n 12 above, 27.

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Peter Ramsay

Smith concludes, it is not until the 1870s (the period following the 1867 Reform
Act which enfranchised most urban males), that 'disenchantment with fault's
ancien regime' begins to 'prompt any concerted [judicial] attempt at conceptual
and lingusitic re-evaluation'.86 Still less that subjectivism only gains its doctrinal
pre-eminence from the 1950s onwards, in the period immediately following the
final elimination of formal inequalities in the franchise, the 'People's War against
fascism', and the political impact of the Labour Party's 1945 landslide election vic-
tory on a programme of extensive reform.
Although any parallels between the UK and the USA should be treated cau-
tiously, Gerald Leonard's account of American criminal law's doctrinal history
lends at least some limited support to the point. Leonard shows that doctrinal
criminal law writers in nineteenth-century America were divided between pro-
ponents of privatejustice, on the one hand, and of public values, on the other. The
former tended to place criminal intent at the heart of liability just as the latter
tended to argue that all were under a duty to avoid violating the substantive values
of public morality.87 The conflict between these two concepts continued into the
twentieth-century.88 Leonard notes how subjectivism only gained its predomi-
nant position in American doctrine over the course of the Model Penal Code
project. This project began in the 1930s, when the standing of penal retributivism
was at a low ebb. But by the time of its publication in 1962, the MPC in its sub-
stantive provisions, insisted that 'every offender be subject to coercion only after
being shown culpable with respect to every element of the state's predefined
offense'.89 It is striking that in the intervening period American political life was
gripped by the federal endeavour, associated with the civil rights movement, to
tackle formal racial discrimination, not least by abolishing legal obstacles at state
level to black people (and also poor whites) exercising their voting rights.9?
Formal equality in the criminal law, and with it the rational subject and
demoralised fault, becomes a necessary aspect of doctrine only once what
Marshall called 'citizenship in its political aspect' has been universalised, and the
effects of that political citizenship are felt. Only then does the state cease formally
to embody a social differentiation and begin to require that legal coercion appear
scrupulously fair to the individual by distributing the rights of citizenship in its
civil aspect, and their withdrawal in the form of punishment, on a formally equal
basis. To reiterate a point made earlier, for the sake of clarity, this argument is not
intended to add anything to normative criminal law theory as such; 'citizenship in
its civil aspect' simply reformulates the Kantian autonomous subject in the idiom
of political sociology. Rather, by reformulating the Kantian concept in this way,
we can gain historical perspective, and notice that the autonomous subject only

86 n 20 above, 370; see also 157.


87 Leonard, n 17 above, 748-774.
88 In the early twentieth century this conflict was significantly complicated by early confidence in
the 'scientific' approach to crime reduction of positivist criminology and 'treatmentist' penal the-
ories, the latter eventually retaining their influence in the penal provisions of the Model Penal
Code. See ibid, 822-824.
89 ibid, 824.
90 See W Murphy and M. Danielson, American Democracy (New York: Hold Rinehart & Winston,
1978) 211-213.

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The Responsible Subject as Citizen

becomes a necessary and inescapable aspect of orthodox doctrine in practice once


political rights are universalised.
The period in which the universalisation of political and civil rights reaches its
apotheosis in the common law world is that of the establishment of the 'welfare
state' in the UK, and of the civil rights movement in the USA. It is to other aspects
of this historical development that we now turn in order to understand those
criminal laws which do not conform to the formal subjective fault categories.
These same developments led to the elaboration of new public values legitimating
penal regulations which either do not require fault at all, or throw the burden of
proving its absence on to the defendant.91

SOCIAL CITIZENSHIP, SOCIALISED RESPONSIBILITY


AND PUBLIC VALUES

If the relation of civil and political citizenship under univer


account for the emergence of modern criminal law doctrine then
aspect of Marshall's tripartite citizenship concept that explains the
lence of strict liability offences. Just as universal political citizenship
ficult to justify punishment except by respecting the offender's e
so it also makes another type of claim harder to resist, the claim
enjoy a citizenship status which Marshall termed the social elemen
The implications for criminal law of social citizenship are quite
those implied by the interaction of the civil and political aspects.
of Marshall's tripartite citizenship concept, the tension between
inal law doctrine and administrative regulatory practice is not en
but it is rendered manageably coherent, at least for a period.
For Marshall,'citizenship is a status bestowed on those who are f
a community. All who possess the status are equal with respect t
duties with which the status is endowed.'92 Citizenship status in i
tical aspects is guaranteed by formal equality, but this only pro
powers whose use was drastically curtailed by class prejudice and l
opportunity'.9 Social citizenship addresses these limitations o
impact of civil and political citizenship for the majority of citize
are a question of securing equal status with respect to the things

91 The argument below concerning social citizenship is not here pressed into ap
than the UK. The relevance of the concept to the American experience is con
Aleinikoff, Semblances of Sovereignty: The Constitution, The State and American Cit
Mass: Harvard University Press, 2002) 44-46; Katz, n 39 above, 343-347;J. Hand
ship and Workfare in the United States and Western Europe (Cambridge: Cambridg
2004) 76-78. However the socialisation of risk in the USA by state interventi
under the reforming Democratic administrations of the 1930s and 1960s in parti
in comparable terms without the invocation of social citizenship by Theod
welfare state, the new regulation and the rule of law' in A. Hutchinson and
The Rule of Law: Ideal or Ideology (Toronto: Carswell 1987); and The End Of Libe
WW Norton & Co, 1979) esp xi.
92 n 45 above, 18.
93 ibid, 27.

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Peter Ramsay

the life of a civilised being according to the standards prevailing in the society'.94
Formal equality is insufficient to guarantee the status of social citizenship:

What matters is that there is a general enrichment of the concrete substance of civi-
lised life, a general reduction of risk and insecurity, an equalisation between the
more and the less fortunate at all levels...95

Of course, as Marshall observed,'the institutions most closely connected with [the


social element of citizenship] are the education system and the social services',96
which served to enrich the concrete substance of life and reduce economic inse-
curity. But the bulk of the regulatory criminal laws of the welfare state serve the
same element of citizenship as Marshall conceived it. For as long as the risks of
being deprived of what was necessary to'live the life of a civilised being according
to the standards prevailing in the society' were disproportionately borne by some,
the status of citizenship was not equally enjoyed by all, however much their for-
mal civil and political rights might be equal. Among these risks could be included
the risk of adulterated food, catastrophic pollution, lethal working conditions,
dangerous and insanitary housing and so on. The management of risks such as
these has been addressed by criminal laws of strict liability.
In its'strictest' form of absolute liability, strict liability throws the entire burden
of risk on to the actor, or any person to whom a statute attributes responsibility97
It does not matter that that person does not intend a harm, or foresee a risk of
harm arising from her conduct, or even fail to foresee a risk that a reasonable per-
son would have foreseen. If she causes, or in respect of some offences fails to pre-
vent,98 the harm then she is liable. Most of this law is addressed to those engaged
in industrial and commercial activities, where the person whose will is the origin
of the relevant actions is an entrepreneur or a corporation. Where liability allows
for a defence of due diligence, a given industry standard is enforced. Where liabi-
lity is absolute even meeting a given industry standard would be insufficient, and
the law implicitly demands that participants seek continually to improve their
safety standards.
Regulatory criminal law thus puts pressure on those who stand to gain by mar-
ket relations (ie, the employer, the manufacturer, distributor and wholesaler, retai-
ler and service provider) by making them do so at their peril in relation to certain
risks to the interests of others (ie, employees and consumers) which their market
activity runs. Strict liability regulatory law is therefore a means of ensuring that
the burden of avoiding these risks will be borne by those most able both to bear
them and actually to minimise them. By placing the burden where it does, the
criminal law tends to make avoidance of these risks a business cost, and thereby
tends to socialise the burden of risk. It has thereby made a contribution to the
equalisation of the basic conditions in which people live, and to'a general enrich-
ment of the concrete substance of civilised life'.

94 ibid, 8.
95 ibid, 33.
96 ibid, 8.
97 Hobbs v Winchester Corporation [1910] 2 KB 471.
98 See Environment Agency v Empress Car Co (Abertilly) Ltd [1999] 2 AC 22.

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The Responsible Subject as Citizen

Marshall's citizenship concept therefore implicitly endorses the two opposing


modes of liability in the criminal law. In its civil and political aspect, as we have
seen, 'modern democratic citizenship' is 'liberal-democratic', implying the Kantian
idea that a person must have in some sense willed the wrong they have done
before they will be liable for punishment, and therefore rejects the idea that any-
one should be a means to an end. But in its social aspect, Marshall's concept is
'social-democratic', requiring only that the person fail in a duty to avoid causing
or risking harms, and allows that an individual may be treated by the law as a
means to a democratically agreed end - the raising of standards in industrial, com-
mercial and public life, for example.
Once the two styles of liability are understood in the context of the criminal
law's environment of citizenship, it is possible to establish the spheres in which,
logically at least, each can be legitimately applied. We have seen above that the
proper sphere of fault liability is those offences which serve to protect the status
of citizenship in its civil aspect, where the right to individual freedom of choice is
at stake. In respect of these offences, subjective fault is entailed as part of the ratio-
nale of the offence because the offence seeks to punish those who repudiate civil
citizenship status. By contrast the logical sphere of strict liability comprises all
those offences in which the duty to uphold the agreed conditions of social citizen-
ship is at stake. Commission of these latter offences represents a failure to do one's
duty in respect of some matter of agreed public interest.99 Punishment for the
regulatory public welfare offences is not a question of desert arising from the
offender's own repudiation of her civil rights but of deterring specific injuries to
conditions which ensure the single civilisation promoted by social citizenship. It
is, therefore, causing harm or creating a risk of harm which is essential to the con-
cept of these offences. As Roscoe Pound put it: 'such statutes are not meant to
punish the vicious will but to put pressure upon the thoughtless and inefficient
to do their whole duty in the interest of public health or safety or morals.'100 If
such conduct were allowed to go unpunished nobody's status as a citizen in its civil
aspect would be denied, however much the conduct may be harmful or even
stigmatised.101 Rather it is the particular, agreed conditions of social citizenship

99 Davies v Harvey (1874) LR 9 QB 433.


100 R. Pound, Spirit of the Common Law (Boston: MarshallJones, 1921) 52. Of course, this implies that
the level of stigma involved will generally be low and that imprisonment would be a harsh
punishment.
101 The distinction between these types of offences is reflected in the English courts' formal method of
determining whether or not an offence is one of strict liability. The courts sets out from a 'pre-
sumption of mens red which will be particularly difficult to displace where the offence is 'truly
criminal' (see Gammon vAttorney-General of Hong Kong [1985] AC 1). The doctrinal category 'truly
criminal' does not map neatly on to the category of offences against the civil citizenship status
described above. The English law will sometimes require fault in an offence which falls into the
category of offences against the conditions of social citizenship. However, that fault may be
required for essentially public welfare offences only indicates the seriousness with which parlia-
ment and the courts may regard the duty to serve the public interest in some circumstances and
the stigma and sanctions attached to failure. Critically, for present purposes, parliament and the
courts have in recent times largely avoided the imposition of strict liability where the statute has
replaced a common law offence that Blackstone might have known (see Lord Reid in Rv Warner
[1969] 2 AC 256, 271).

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Peter Ramsay

which are undermined, and here a burden of public duty may lie wherever the
legislature places it.102
Like the criminal law of moral agency, the criminal law which socialises the
burden of risk by strict liability also has an ideological aspect. Strict liability pro-
vides enforcement agencies with a source of pressure to gain compliance with
public policy, since potential offenders know that in theory they cannot escape
liability by pleading their lack of fault, or even that they met the prevailing indus-
try standard where there is no due diligence defence."13 The rigours of such a
regime are in practice mitigated though enforcement by regulatory agencies
enjoying a very wide prosecutorial discretion. But one consequence of these more
discretionary styles of enforcement is that it has been shown that prosecutions are,
in practice, for the most part brought only when the offender is in fact culpable.104
A conviction for such an offence may thus serve to obscure the reckless causing of
a serious harm by relatively powerful persons or corporations in pursuit of profit
under the veil of an offence which is not criminal'in any real sense'.10s In this way
the distinction between these'public welfare offences' and'truly' criminal offences
reflects the sociological distinction between those, predominantly businesses and
employers, who offend against regulations which promote social citizenship, on
the one hand, and 'ordinary' criminals who offend against the conditions of civil
citizenship, on the other. This may have the effect of protecting business interests
from any stigma that might attach to their harmful conduct, at the same time as it
lays extra burdens on them.106
Although strict liability regulation develops roughly contemporaneously with
the democratic movement, the ideological aspect of this form of regulation sug-
gests, at the very least, that the democratic spirit was not the only force at work in
the promotion of social citizenship by such regulation.107 Nevertheless, this does

102 It is on this point that the fair-opportunity or capacity theory of liability is seen to be part of
normative subjectivist theory (see n 17 above), because it is unable to explain the presence of abso-
lute liability, other than as legislative error orjudicial weakness. For a recent account in these terms
from a defender of the capacity theory, seeJ. Horder, Excusing Crime (Oxford: Oxford University
Press, 2005) 243-252. Social citizenship, on the other hand, provides a perspective that is in principle
indifferent to fault (however much it may in practice deploy it as a technique of regulation)
because it does not pose duties with respect to individual freedom of choice entailing fault, but
duties arising from the goal of maintaining a universal minimum level of welfare. It is interesting
that Horder, in promoting the'due diligence' defence so as to reconcile the welfarist aspect of strict
liability regulation with the liberal commitment to individual justice which underlies the capacity
theory, argues that it is necessary to'move beyond' Hart's capacity theory in favour ofJoseph Raz's
more recent theory of autonomy (see Excusing Crime, 3 and 265-68).
103 See M. Smith and A. Pearson,'The value of strict liability' [1969] Crim LR 5,15.
104 W Carson,'White collar crime and the enforcement of factory legislation' (1970) 10 BritishJournal of
Criminology, 383. Indeed the courts have on occasion demanded this practice, see G.Williams, Crim-
inal Law: The General Part (London: Stevens & Sons, 1961) 256.
105 See W. Carson,'The conventionalisation of early factory crime' (1979) 1 Int]ournal of Society of Law,
37; D. Nelken,'Criminal law and criminaljustice: some notes on their irrelation, in I. Dennis (ed),
Criminal Law and]ustice (London: Sweet & Maxwell, 1987) 149-150.
106 Norrie, n 12 above, 85-86.
107 The political significance of social democracy and universal citizenship in the origin of the welfare
state is much debated, for a review see C. Pierson, Beyond the Welfare State: The New Political Economy
ofWelfare (Cambridge: Polity, 1998) ch 1. Some other relevant sources of the tendency towards risk
socialisation in general are outlined below, see text following n 133 below

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The Responsible Subject as Citizen

not invalidate the connection which Marshall drew between social citizenship
and universal political rights. Democratic societies, he argued, can only tolerate a
limited degree of differentiation in social status.'Status differences can receive the
stamp of legitimacy in terms of democratic citizenship provided they do not cut
too deep, but occur within a population united in a single civilisation.'08s
Democratic pressure may not have been the primary source of social citizenship
by means of strict liability regulation, but the democratic welfare state of the post-
war period nevertheless promoted the'single civilisation', to which that regulation
contributed, as its core'public value'.
Universal political citizenship is an environment in which both civil citizen-
ship, with its'truly' criminal offences of fault, and social citizenship, with its strict
liability public welfare offences, may be simultaneously coordinated and legiti-
mated in practice. The promotion of the 'single civilisation' of 'modern demo-
cratic citizenship' required the private justice of formal equality in the small 'core'
of offences against civil rights while allowing the positive duty to uphold the
public value of welfare protection and risk-avoidance to be imposed over the rest.
Just as orthodox doctrinal fault categories are legitimated by the citizenship con-
cept of formal democracy and mass political participation, so is the regulatory law
of strict and negligence liability. From the point of view of their historical devel-
opment, the two apparently competing modes of criminal liability can be seen to
be essential aspects of citizenship in the democratic welfare state.
Seen from this standpoint, there is no need to treat one half of criminal law as
anomalous, as orthodoxy has tended to, or to reduce the other half to a mere var-
iant of the first, as Farmer tries to. The two jurisdictions have proved compatible
in practice because both are presupposed by the citizenship concept of the demo-
cratic welfare state, as described by Marshall. The criminal law's paradox of insist-
ing that individuals may not be a means to an end while actually calling them to
just such public duties over much of the law's scope can be resolved in practice
providing two conditions are maintained. First, that each mode of liability
remains in its proper sphere; second, that Marshall's citizenship concept remains
predominant in the political culture. However, as I shall argue presently, the first
condition could never be guaranteed, and the second may be undermined by ten-
sions inherent in the citizenship structure itself. We will get a clearer picture of
these tensions if we compare the sociological account offered here with a recent
philosophical rationalisation of the criminal law's apparently antithetical forms of
liability.

PHILOSOPHICAL RATIONALISATION AND HISTORICAL


TRANSFORMATION

Alan Brudner's philosophical account of criminal law has already b


and, in places, relied upon. Although they do not entirely coinc
obvious parallel between it and the account offered here. For Bru

108 n 45 above, 44.

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Peter Ramsay

inal law is 'a differentiated totality composed of two principal subsystems'.109 The
distinction between these subsystems of real crimes, on the one hand, and regula-
tory offences against welfare goals, on the other, is non-arbitrary, and grounded in
two paradigms, the paradigm of agency and the paradigm of welfare.110 These
paradigms closely parallel the spheres of civil citizenship and social citizenship
respectively.
Brudner's analysis subtly demonstrates how the concept of each subsystem
(agency or welfare), while being characterised by apparently antithetical principles
ofjustice, covertly presupposes the concept of the other subsystem. In particular,
he argues that the concept of purely formal agency, which generates the legal
paradigm of fault, implicitly recognises its own impossibility, and that it is 'rea-
lised rather than formal freedom' that is 'the basis of duty'.11 For freedom to be
'realised', not only must the individual's capacity to realise their goals be protected
by law, but also, to some extent, the realisation of the 'subjective goals' them-
selves.112 It is this covert presupposition that subjectivist theories based on formal
agency are necessarily blind to, and it is this presupposition that generates the nor-
mative basis of the public welfare regulations. But these welfare regulations in
turn covertly presuppose'the discrete end status of the individual agent and hence
the distinctive legal paradigm ordered by that principle'.113The 'genuine ground
of law' is therefore to be found in neither 'formal agency nor the common good'
for these are just distinctive embodiments of a whole which he calls 'dialogic
community', and that community consists of a 'structure of mutual recognition'
by subjects of each other's autonomy.114
Brudner's dialogic community can be seen as a philosophical account of the
same historical experience which Marshall's complex of modern democratic citi-
zenship explicates as political sociology. Both proceed from the mutual recogni-
tion by subjects of each other as enjoying an equal status which is more than a pure
formality. Both produce, on the one hand, a regime of formal equality (or nega-
tive civil rights) implying a criminal law of subjective fault and, on the other, a
regime for the realisation of the goals of autonomous agents (or positive social
rights), implying a criminal law which does not require fault but imposes a duty
to avoid causing harm. However, where Brudner's ethics tends to imply a closed,
stable, self-regulating system, Marshall's idiom of political sociology emphasises
the fact that the 'dialogic community' is a specific historical experience, an
achievement of human beings, which contains paradoxes and tensions which
point in the direction of further change.
Brudner's wholly philosophical approach takes little account of its historical
presuppositions. As a result, he glosses the problem canvassed above of the very
late development of the categories of subjective fault in the offences bequeathed
to the modern regulatory state by the common law.115 Moreover, he rejects the

109 n 77 above, 50.


110 ibid, 51.
111 ibid,40.
112 ibid.
113 ibid, 50.
114 ibid.
115 See ibid, 33.

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The Responsible Subject as Citizen

'sceptic's claim' that 'antagonism between the two paradigms is a necessary and
constant reality' on the grounds that there is 'no logical imperative to absolutise
one or the other principle as the ground of law'.116 For Brudner each paradigm is
logically constrained by its presupposition of the other"'7 Any attempt by either
paradigm to colonise the whole of the criminal law leads the system into self-
contradiction."18 He assumes that theoretical logic is enough to resolve the tension
between them. As long as judges and legislators understand the logic of the
system, all will be well. But logic is not enough,119 and the constant mutual inter-
ference between the paradigms cannot be reduced to a mistake.
To the contrary, within the offences concerned with formal agency, the logic of
formal equality enjoyed by the abstract legal personality is never left in peace to
elaborate the principles and rules that it entails. This is not a result of subjective
error on the part of the judiciary, but because that logic proceeds from the inade-
quate premise that the criminal courts are actually dealing with abstract legal sub-
jects (or citizens), when they are in fact dealing with concrete personalities who
seek to realise their autonomy by acting in highly differentiated concrete social
conditions.120 For this reason, judicial construction of the rules of liability to state
punishment cannot possibly eliminate considerations of moral substance or pub-
lic values, or indeed of social control and raison d'etat.121 As a result, the modern
criminal law justified in terms of abstract will, agency and private justice has never
been entirely purged of elements that derive from considerations of concrete per-
sonality, moral substance and public values, even in the offences where Brudner's
theory suggests it should be.122 One consequence of this is the endless supply of
inconsistencies and contradictions in the substantive law that present themselves
for doctrinal commentary.
Equally striking is the intractability of the conflict between the two paradigms,
and the impossibility of preventing interference between them, when looked at
from the perspective of what conduct is, or should be, criminalised. Brudner
insists that laws grounded in the welfare paradigm are subject to the non-
contradiction proviso which states 'that the public authority may not adopt means
that negate the autonomy of some persons, even if no other instrument would
effectively achieve its goal, for such means are inherently incompatible with the
common good.'123 But when he comes to elaborate on the 'principle' which
limits legislative efforts to promote effective autonomy through the welfare para-
digm, he reveals just how politically contingent a judgement this will be in
practice.
For Brudner, penal laws of the welfare paradigm which serve the common
good are those that secure the 'satisfaction of values indispensable to the coherent
self-expression of agency' and the goodness of these values'is thus based on reason

116 ibid, 49.


117 ibid 50.
118 ibid, 51.
119 On this general weakness of Hegelian method see Norrie, n 11 above, 80-81.
120 ibid.
121 Norrie, n 12 above, ch 1.
122 ibid; see also Norrie, n 14 above.
123 n 77 above, 45. For this reason, Brudner like other normative theorists also rules out absolute lia-
bility, see 44.

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Peter Ramsay

rather than on subjective desire'.124 These values entail 'a minimum degree of
security of life, physical health, education, and economic wherewithal'.125 But
how are these material goods to be legally ensured consistently with formal
autonomy? Brudner notes that one of the two 'principles of justice applicable to
penal laws ordered to the common good' is 'that rights of formal liberty may be
abridged by such laws only to the extent necessary to achieve the social purpose.
Thus, an abridgement is unjust if there is available an alternative means of achiev-
ing the goal that is less restrictive to liberty"126 But the words 'achieving the goal'
import a potentially unmanageable range of contingencies. How restrictive of
formal liberty it is necessary to be will depend, in many cases, on how much of
the goal is to be achieved. It will usually be possible to find a less restrictive inter-
ference with formal liberty at the cost of achieving the goal less effectively.127 In
other words, at any particular time and place,'the minimum degree' of some good
necessary to 'coherent self-expression of agency' will be determined by a complex
interaction of political, economic and cultural contingencies. This problem is par-
ticularly acute when'security of life' is the goal. The extent of restriction offormal
autonomy that will be'necessary' will be contingent on the degree of security that
is thought necessary to ensuring effective autonomy. This conflict of paradigms is a
pervasive feature of a wide spectrum of contemporary political debate from
smoking bans to the domestic aspects of the 'War on terror'.128
As far as criminalisation is concerned, therefore, although Brudner provides a
purely theoretical limit with his non-contradiction proviso, his method of deter-
mining where the limit lies indicates that in practice, within his system and in
political life, there is no clear marker of where ensuring effective autonomy ends
and the negation of formal autonomy begins. The absence in political practice of a
well-defined borderline which might divide the securing of 'realised freedom'
by means of criminal regulation from the extinction of formal freedom by
the same means suggests that the welfare paradigm may legitimate the subversion
of formal liberty by extensive criminalisation, while still upholding it in

124 ibid, 41.


125 ibid.
126 ibid, 45. Brudner here adopts the Canadian Supreme Court's test for the proportionality of an
interference with constitutional rights in Rv Oakes [1986] 1 SCR 103.
127 See P. Chapman,'The politics ofjudging: Section 1 of the Charter of Rights and Freedoms' [1986]
Osgoode Hall L] 867 883, for this criticism of the test in Oakes which Brudner adopts, see n 126
above.
128 The controversy in 2005 surrounding the terrorism Control Order is one particularly acute recent
example. Section 1 (2) of the Prevention of Terrorism Act 2005 allows the Home Secretary to
place individuals under specific criminal law obligations where she (a) has reasonable grounds
for suspecting that the individual is or has been involved in terrorism-related activity; and (b)
considers that it is necessary, for purposes connected with protecting members of the public from
a risk of terrorism, to make a control order imposing obligations on that individual. A Control
Order's terms may be such as to very severely limit or extinguish legal recognition of an indivi-
dual's formal autonomy (see sections 1(3) and 1(4)). Ministerial arguments in favour of the Control
Order routinely deployed the figure of the 'balancing act' between freedom and security. More-
over, ministers argued that security is the precondition for the flourishing of individual citizens
and communities: see, for example, the Lord Chancellor Lord Falconer's speech on'Citizenship
and the criminal justice system' 3 February 2005, www.dca.gov.uk/speeches/2005/lc030205.htm
(Last visitedJune 2005).

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The Responsible Subject as Citizen

theory.129 And this process may undermine the entire structure. Here again we are
returned to the theory's inadequate factual premises, only now in the legislative
arena. Historically, Brudner's 'dialogic community', which grounds the para-
digms of formal agency and of welfare, did not arise either from a mutual recog-
nition of other subjects' autonomy and life plans in the abstract or from the imma-
nent acceptance of an attractive philosophical idea. Rather, the philosophical idea
explains and rationalises the particular social arrangements that arose from the
compromise of the political conflict between different concrete social interests in
the nineteenth and early twentieth centuries. More importantly, for present pur-
poses, once the dialogical community was established those concrete interests
continued to assert themselves, so that the dialogic community itself has a
history. It will be the exigencies of that history which determine where the
vaguely defined limit of interference with formal autonomy, the limit which
keeps the antagonism between the two paradigms in check and the system from
self-contradiction, is held to lie at any particular time.
In the course of the dialogic community's history, the more that political and
legislative practice seeks to 'realise' effective autonomy by regulations which
restrict formal autonomy, the less salient the abstract individual will appears to
be in social life. In this process, the 'dialogic community' itself, the 'ground of
law', the basis of both paradigms and of their unity, could be put into question.
The population generally, and more especially its political representatives, might
fail to recognise each other as formally autonomous wills because they fail to
recognise themselves in this form. There is nothing in Brudner's system which pre-
vents the society which it describes from the condition of self-contradiction, and
such a condition might indicate that the dialogic community has limits and could
exhaust itself as a historical entity. Moreover, as Brudner notes, punishment
which results from rules which reflect such self-contradiction will neither treat
the agent punished as an end in herself nor serve the common good.130
Brudner rightly identifies both the way in which the apparently antithetical
paradigms in the criminal law are unified and why it is that subjectivist doctrine
has been unable to perceive this. But his elegant theory, like any purely philoso-
phical account, overlooks the historical conditions which supply its basic assump-
tions. Closed to the particular circumstances in which the criminal law's unity
arose, it overlooks the internal tensions that disrupt and undermine that unity.
Brudner describes a unity which is historically specific and unstable in a way
which his theory does not account for. Marshall, on the other hand, was conscious
that the structure of modem citizenship is the achievement of a particular histor-
ical experience in which antithetical principles are only reconciled for a time, for
as long as specific conditions hold. He summed up the position in this way:

This conflict of principles springs from the very roots of our social order in the pre-
sent phase of the development of democratic citizenship. Apparent inconsistencies

129 Numerous writers have raised the problem of overcriminalisation. See, for example, Editorial,
(2005) Crim LR 424; D. Husak,'Limitations on criminalisation' in S. Shute and A. Simester (eds),
Criminal Law Theory (Oxford: Oxford University Press, 2002) 19-21; and Ashworth, n 4 above.
130 n 77 above, 49.

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Peter Ramsay

are in fact a source of stability, achieved through a compromise which is not dictated
by logic. This phase will not continue indefinitely.131

The intellectual difficulties experienced by the criminal law today cannot be


grasped from the standpoint of a theory that is closed to historical change. The
sociological idiom of citizenship may prove particularly helpful in this respect.
We have seen that the conflict between the antithetical paradigms of criminal
law could be managed (or, at least, played down) under the citizenship conditions
prevailing in the postwar 'phase of development' which Marshall analysed.
Investigating how these citizenship conditions are changing today may offer a
framework for making sense of the pressures on the criminal law in our 'present
phase' of social and political development.132

CONCLUSION

To summarise, citizenship is the environment of the criminal law


an explanation of the two problems presented by the historical a
inal law as an ideology. The Enlightenment categories of subjecti
prominence in those offences which protected the civil aspect of
individual's formal membership of civil society, only once the u
political rights had rendered them the only legitimate possibility
environment also legitimates the public welfare offences of stri
liability in so far as they play a part in establishing the status of soc
Subjectivist doctrine's uneasy predominance reflected the ideolo
the compromise between the opposing paradigms. Doctrine
liberal-democratic aspect of civil rights and formal freedom, esp
offences disposal of which amounted to the 'hard' end of the crim
tem where enforcement tended to be strict and punishment re
Meanwhile, the 'anomalous' social-democratic aspect of public w
got on less dramatically seeking compliance with the duties of
and public values through the administrative regulation of every
I have emphasised the influence of political rights and their s
criminal law doctrine because this seems to explain the historic
set out from. I do not want to suggest that formal democracy is
the relevant environment of criminal law in the past, especially
development of its regulatory welfare jurisdiction between the
and mid-twentieth centuries. Lacey identifies the growth of so
knowledge, and the resulting conflict over social welfare an
between lawyers and professionals trained in these new disciplin
in the development of the mens rea doctrine.133 This trend is itself

131 n 45 above, 49.


132 For an example of the application of the citizenship concept to a contempor
P Ramsay,'What is anti-social behaviour?' [2004] Crim LR 908 esp 922-924.
133 See n 2 above, 32. This factor is of particular importance in the context of t
new disciplines over penal practice in the early part of the twentieth centur
above.

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The Responsible Subject as Citizen

the growth of the risk-managing administrative state in the late nineteenth cen-
tury which Farmer is right to see as significant, although he tries to make too
much of it.134 The development of this administrative welfare state, and of the
social citizenship concept that arose with it, depended on wider developments
than formal democracy. Marshall himself observed that mass production for the
consumer market was of critical importance,135 and state intervention to facilitate
the socialisation of market risks from the late nineteenth century onwards is also
particularly significant.136 However, these aspects of the law's past socio-political
environment are such clear precursors of our own time that focusing on them
runs the risk of reading our own preoccupations back into the past at the expense
of questions which were critical then but have since receded in significance. It is
the influence of one of those questions - universal suffrage and political democ-
racy - which I have sought to draw attention to. The orthodox doctrinal story of
the responsible subject can only be reduced to a technique of a risk-managing
administration if the significance of democratic rights is played down.
Democratic citizenship was at the core of Marshall's vision because it had the
capacity to'legitimate social inequality' by an order that made a'basic equality' of
citizenship status 'consistent with the inequalities of social class'.137 We have seen
how that citizenship status can logically account for the legitimate development
of the criminal law's otherwise antithetical paradigms of liability in the twentieth
century. But we have also seen that this is a compromise fraught with tension.
Marshall developed his concept to account for how the modem drive to social
equality could 'coincide ... with the rise of capitalism, which is a system, not of
equality, but of inequality'. Marshall's social citizenship explained how 'these two
opposing principles could ... be reconciled with one another and ... become,for
a time at least allies instead of antagonists.138 But capitalism's 'rise' is over, and the
problems of legitimation and control associated with its rise have become com-
plicated by new problems associated with its maturity. The current intellectual
difficulties experienced by the criminal law are not only the result of the social
tensions which welfare state citizenship sought to resolve, but also of the tensions
and contradictions which that citizenship concept has generated.

134 The wider 'governmentality' literature views risk-management as a central feature of all modem
government. For a brief review, D. Garland, 'Governmentality' and the problem of crime: Fou-
cault, criminology, sociology' (1997) 1 Theoretical Criminology 173.
135 n 45 above, 28.
136 SeeT. Lowi,'Risks and rights in the history of American government' (1990) 119 Daedalus 17.
137 n 45 above, 7.
138 ibid, 18 (emphasis added)

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