Nicola Lacey

In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory

This paper examines the way in which English criminal laws conception of responsibility has changed since the eighteenth century, and explores the relationship between changes in legal framework, changes in processes of criminalisation and punishment, and broader social, political and economic changes. It argues that the development of ideas of individual responsibility for crime are responses to problems of co-ordination and legitimation faced by systems of criminal law, and that these problems can be expected to change according to the environment in which the system operates, with important factors including the distribution of political interests and economic power; the prevailing cultural and intellectual environment; the organisation and status of relevant professional groups and the vigour of alternative means of social ordering. Substantively, the paper explores the hypothesis that criminal responsibility has shifted from a conception founded in ideas of character to a capacity-based conception over the relevant period. Methodologically, the aim is to historicise the structure as well as the content of criminal law within a socio-theoretic framework, constructing a dialogue between criminal law theory of a doctrinal and philosophical temper and socio-historical studies of criminal justice.

Legislation against sex discrimination: questions from a feminist perspective

Since the Equal Pay Act was enacted in 1970, Britain has gradually formulated a legislative scheme explicitly aimed at the elimination of certain forms of discrimination.1 The Sex Discrimination Acts 1975 and 1986 and the Race Relations Act 1986 have resulted. Accession to the European Community has introduced the European standard of equal treatment, prompting developments such as the Equal Pay (Amendment) Regulations 1983, which introduced the concept of equal pay for work of equal value. Indeed, it seems fair to say that protection from unjust discrimination on grounds of sex or race is the area of civil rights which has received the most systematic and innovative legislative attention in Britain over the past two decades. Correspondingly, the technical and strategic problems thrown up by the antidiscrimination legislation and questions about its reform have received much attention.2 In this paper, by contrast, I want to raise some more general questions about the underlying basis of principle of the Sex Discrimination Act 1975, specifically from a feminist point of view. For these general questions have, as I shall argue, important implications in terms both of difficulties in using and enforcing the legislation and of our thinking about the proper direction of reform. In arguing from a feminist perspective, I shall not give any detailed account of a particular version of feminist theory. It should be sufficient to my argument to characterise such a theory as one which takes as its starting point the fact of womens subordination and oppression and which thus evaluates anti-discrimination legislation in terms of its actual and potential contribution to the dismantling of such oppression. This is not to say that the project of constructing a detailed theory and working towards a full understanding of the nature of womens oppression is not of fundamental importance. Rather,

From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm

Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences—typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context—imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice.

Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and Criminal Law

As Michel Foucault famously observed, the Nineteenth Century’s construction of sexuality as an unspeakable subject paradoxically generated an extraordinary amount of talk about sex. This paper engages with another paradox in the same field: for my main thesis will be that the criminal law which purports to regulate sexual behaviour has, in an important sense, very little to do with sex at all. Perhaps this rather startling aspect of my argument explains the difficulty which I had in writing the paper. It probably had more to do, however, with the fact that it was originally written as an inaugural lecture. I hope that you will bear with me if I begin by describing the history of the lecture—for this history is, I think, an integral part of the present paper’s argument. Writing and delivering an inaugural lecture is, in my experience, a uniquely challenging process, which forces one to think in a particular way about the place one sees one’s work as having in and beyond the academy. For a woman, there is an added complication which probably (though subconsciously) informed the reference to ‘unspeakable subjects’ in my title. The delivery of a lecture is an authoritative activity culturally marked as masculine. This issue about, as it were, the sex of lecturing came home to me very forcefully when I asked a friend to read a draft of the lecture: a few pages into the text, she observed: ‘so far, the tone is more woman than professor….’ Having completed my higher education without once being taught by a woman, it perhaps wasn’t surprising that I was having trouble finding a feminine professorial voice. But my friend’s comment touched also on a deeper issue. This lies in the controversial philosophical and psychoanalytic literature which equates the feminine with a state of lack, abjection and silence. If a woman professor is in some sense ‘speaking as a man,’ and if, as a feminist and a woman, one wants to find an authentic voice and style, the inaugural lecture presents at once the forum in which one’s responsibility to do so is greatest, and that in which success is most elusive. I spoke, then, as a subject of the unspeakable sex, exercising the apparently impossible right of speaking on the unspeakable subject of sex.

Crime, punishment and segregation in the United States: the paradox of local democracy

Patterns of crime and punishment in the USA greatly magnify corresponding developments in other liberal market economies – Australia, Canada, New Zealand and the UK – faced with similar broad macro-technological transformations, namely the collapse of Fordism in the 1970s and 1980s and the development of knowledge economies in the 1990s and 2000s. In this article, we set out the case for seeing these differences as largely the product of dynamics shaped by the institutional structure of the US political system. We focus on the exceptional direct and indirect role of local democracy in key policy areas including law and order and beyond that in residential zoning, in public education and in incorporation of suburbs, which has no parallel in the other Anglo-Saxon polities, and which magnifies through residential and educational segregation and concentrated poverty the social problems caused by socio-economic developments.

American imprisonment in comparative perspective

Dædalus Summer 2010 Over the last forty years, a number of Western democracies have signi1⁄2cantly increased their use of imprisonment. What explains this phenomenon? The most influential line of reasoning looks to the global economic changes that began in the 1970s: the contraction or collapse of manufacturing industries; the creation of a large sector of people who faced long-term unemployment or were employed in insecure forms of work; and consequent pressure on the welfare state. These changes, it is argued,1 have eroded the consensus that sustained postwar penal welfarism. A rise in recorded crime across Western countries gradually normalized criminal victimization and the management of the risk and fear of crime. Crime became, for the economically secure, an increasingly politicized issue, generating a “penal populism” that brought in its wake repressive and managerial criminal justice strategies. This is a powerful argument. However, its focus on structural forces and on general categories such as “late modern society” or “post-Fordism”2 directs attention away from variations in the institutional framework through which those forces are mediated in different countries. This is unfortunate; notwithstanding the wide diffusion of a political discourse of penal populism, there are striking differences in the extent to which that discourse has led to greater severity in penal practice. Not all “late modern” democracies have plumped for a “neoliberal” politics. Countries like Denmark, Germany, and Sweden have managed to sustain relatively moderate, inclusionary criminal justice systems–systems premised on reintegrating offenders into society–throughout the period in which the British and American systems have moved toward ever-greater penal severity. Even then, the differences in the scale and quality of punishment between British and American penal systems are striking, with the United States occupying an unenviable position as the unrivaled leader among advanced economies in the costly business of mass imprisonment. The baleful distinctiveness of the United States’ incarceration record is epitomized, though not exhausted, by imprisonment rates between four and twelve times higher than those in other political economies at similar levels of development (see Figure 1). The picture becomes even more baffling when we consider variation among U.S. states’ imprisonment rates, which, in the mid-2000s, ranged from less than double those of the most Nicola Lacey

To Blame or to Forgive? Reconciling Punishment and Forgiveness in Criminal Justice.

What do you do when faced with wrongdoing—do you blame or do you forgive? Especially when confronted with offences that lie on the more severe end of the spectrum and cause terrible psychological or physical trauma or death, nothing can feel more natural than blame. Indeed, in the UK and the USA, increasingly vehement and righteous public expressions of blame and calls for vengeance have become commonplace; correspondingly, contemporary penal philosophy has witnessed a resurgence of the retributive tradition, in the modern form usually known as the ‘justice’ model. On the other hand, people can and routinely do forgive others, even in cases of severe crime. Evolutionary psychologists argue that both vengeance and forgiveness are universal human adaptations that have evolved as alternative responses to exploitation, and, crucially, strategies for reducing risk of re-offending. We are naturally endowed with both capacities: to blame and retaliate, or to forgive and seek to repair relations. Which should we choose? Drawing on evolutionary psychology, we offer an account of forgiveness and argue that the choice to blame, and not to forgive, is inconsistent with the political values of a broadly liberal society and can be instrumentally counter-productive to reducing the risk of future re-offending. We then sketch the shape of penal philosophy and criminal justice policy and practice with forgiveness in place as a guiding ideal.

Why Globalisation Doesn’t Spell Convergence: Models of Institutional Variation and the Comparative Political Economy of Punishment

This paper argues that contemporary patterns of punishment can only be fully understood through comparative analysis, and makes in particular a case for a political – economic approach based on the analysis of comparative institutional advantage of differently structured systems. This comparative advantage explains why, notwithstanding a measure of globalization and policy transfer in criminal justice, longstanding differences in the penal practices of different countries persist. The paper also examines the distrust of model-building in contemporary social theories of punishment, acknowledging that this distrust proceeds from some legitimate and eminently understandable concerns: but arguing that it is nonetheless obstructive to the capacity of comparative research to achieve its full explanatory potential. The second part of the paper examines the objections to typology or model-building in penal theory by drawing on the case studies of New Zealand and the USA – countries which on the face of it present difficulties for the model sketched in The Prisoners’ Dilemma (2008). It argues that the objections to model-building may be more readily overcome than is usually recognized; and that the apparently different enterprises of model-building or theoretical generalization on the one hand and detailed empirical research on the other are intimately linked in a number of ways. By moving between these complementary methods, moving back and forth between model and data, it is possible to revise and refine models in the light of further findings. And this in turn will open up new and fruitful fields of local empirical inquiry for criminologists and others. .

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory’s normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state’s power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.

The rule of law and the political economy of criminalisation: an agenda for research

This article argues for an institutional approach to criminalisation scholarship, drawing on historical and comparative methodologies, and on the resources of several disciplines including law, sociology and political science. It goes on to sketch the sort of research agenda which is implied by that approach, with a view to laying the intellectual building blocks for a broad political economy of criminalisation within modern societies committed to the Rechsstaat/rule of law. The article describes how this framework developed out of recent work in the apparently discrete fields of historical and of comparative studies, of doctrinal analysis of criminal law, and of socio-political analysis of criminal punishment in modern societies. The main outlines of these projects are set out in the first part of the article, which then moves on to consider how they may be brought into dialogue so as to inform the construction of a further research agenda. This agenda, which seeks to contribute to the building of a general understanding of the place of criminalisation and punishment within the governance frameworks of various kinds of social order which share a commitment to Rechtsstaat/rule of law ideals, is sketched in the third part of the paper. In conclusion, the article argues that such a research agenda implies an expansive conception of punishment and society scholarship.