Crime, Reason and History: A Critical Introduction to Criminal Law

Citation

Norrie, A. (2014). Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed.). Cambridge University Press.

Chapter Summary

Prologue

A Brief History of the Ancient Juridical City of FictionopolisThe prologue provides an allegorical tale about the city of Fictionopolis, exploring the themes of justice, fairness, and the role of laws in society. It sets the stage for the critical examination of criminal law by illustrating the arbitrary nature of justice and the need for reform.

Part I: Context

Contradiction, Critique and Criminal Law

This chapter introduces the main themes of the book: the contradictions within criminal law, the interplay between rationality and legality, and the concept of individual justice. It discusses how criminal law is shaped by social history and contains conflicting elements.

The Historical Context of Criminal Doctrine

This chapter examines the development of criminal law within its historical context, focusing on the Enlightenment’s influence on penal theory, the role of middle-class interests, and the ideological underpinnings of legal individualism. It explores the relationship between legal individualism and social control.

Part II: Mens Rea

Motive and Intention

This chapter discusses the concepts of motive and intention in criminal law, highlighting the conflicts between individual morality and political morality. It examines indirect intention and the various legal and moral judgments associated with it.

Recklessness

This chapter analyzes the concept of recklessness, contrasting subjectivist and objectivist approaches. It discusses the legal evolution from Caldwell to G and the historical roots of recklessness, introducing the idea of practical indifference.

Strict and Corporate Liability

This chapter covers strict liability and corporate liability, exploring the differentiation between regulatory offenses and ‘real’ crimes. It examines the evolution of corporate liability and the complexities of assigning responsibility and punishment in a corporate context.

Part III: Actus Reus

Acts and Omissions

This chapter delves into the distinction between acts and omissions in criminal law, discussing the concepts of voluntariness and moral versus physical involuntariness. It addresses the juridification of omissions and the debate over specific duties of citizenship.

Causation

This chapter critically examines the principles of causation in criminal law, including the concepts of abnormal conditions, third-party interventions, and the imputation of causation. It analyzes various causation cases to illustrate these principles.

Part IV: Defences

Necessity and Duress

This chapter explores the defenses of necessity and duress, examining their historical development and the conflicts within their legal applications. It discusses the ambiguous history of necessity and the formal structure of these defenses.

Insanity and Diminished Responsibility

This chapter addresses the legal defenses of insanity and diminished responsibility, discussing the conflict between law and psychiatry. It examines the breadth and limitations of the M’Naghten Rules and the modernization of diminished responsibility.

Self-Defence

This chapter analyzes the defense of self-defense, including the principles of necessity, imminence, and proportionality. It discusses mistaken self-defense and the interplay between offense and defense.

Loss of Control

This chapter covers the new and old laws of provocation, focusing on the philosophical underpinnings and practical applications of the loss of control defense. It examines issues such as the grounds for provocation and the impact of historical shifts.

Part V: Concluding

Sentencing

This chapter examines various theories of sentencing, including deterrence, retributivism, rehabilitation, and incapacitation. It discusses the competing ideologies within sentencing practices and the dominant rationale behind them.

Conclusion

The final chapter ties together the themes discussed throughout the book, emphasizing the political nature of juridical individualism and its impact on criminal law. It discusses the intrinsic conflicts within criminal law and the concept of criminal law as praxiology.

Key Concepts

1. Contradictions in Criminal Law

Rationality vs. Legality: Criminal law is often seen as rational and logical, but it is deeply influenced by historical and social contexts, leading to inherent contradictions.

Individual Justice: The law aims to provide justice to individuals but often faces conflicts between individual rights and collective societal interests.

Moral and Legal Responsibility: There is a persistent tension between the legal definitions of responsibility and the moral judgments of individual actions.

2. Historical Development of Criminal Law

Enlightenment Influence: The Enlightenment introduced concepts of retributive justice and utilitarian deterrence, shaping modern penal theories.

Middle-Class Interests: Legal reforms often reflect the interests and ideologies of the middle class, emphasizing individualism and social control.

3. Mens Rea (Mental Element)

Intention and Motive: The distinction between motive (why an act was done) and intention (the aim or purpose of the act) is crucial. Legal judgments can conflict with moral evaluations.

Recklessness: The subjective (awareness of risk) and objective (reasonable person standard) approaches to recklessness highlight the complexity in determining culpability.

Strict Liability: In strict liability offenses, mens rea is not required for at least one element of the actus reus, raising questions about fairness and justice.

Corporate Liability: Corporations can be held liable for criminal acts, but attributing fault to a collective entity involves complex legal principles like the identification doctrine and aggregation.

4. Actus Reus (Physical Element)

Acts vs. Omissions: Criminal law differentiates between active conduct and failures to act. Omissions can lead to liability if there is a legal duty to act.

Voluntariness: Actions must be voluntary to constitute actus reus. The law distinguishes between physical and moral involuntariness.

Causation: Establishing causation involves proving that the defendant’s actions were a substantial and operating cause of the harm. Issues like third-party interventions and abnormal conditions complicate this determination.

5. Defenses

Necessity and Duress: These defenses justify or excuse criminal conduct under specific circumstances, such as imminent danger or coercion. The distinctions between justificatory and excusatory necessity are significant.

Insanity and Diminished Responsibility: These defenses address the defendant’s mental state, focusing on whether they could understand their actions or control their behavior. The legal definitions and psychiatric evaluations often conflict.

Self-Defense: This defense justifies the use of force to protect oneself, others, or property. Key elements include necessity, proportionality, and reasonableness.

Loss of Control: A modern reform of the provocation defense, allowing partial defense to murder if the defendant lost self-control due to a qualifying trigger.

6. Sentencing Theories

Deterrence: Punishing offenders to prevent future crimes by the individual (specific deterrence) or by others (general deterrence).

Retributivism: Punishment as a moral response to wrongdoing, ensuring that the punishment is proportionate to the offense.

Rehabilitation: Reforming offenders to reintegrate them into society as law-abiding citizens.

Incapacitation: Removing dangerous individuals from society to prevent further harm.

7. Legal and Moral Substance

Formalism vs. Substantivism: Legal formalism emphasizes strict adherence to legal rules and principles, while substantivism focuses on the underlying moral and social contexts. The tension between these approaches is a recurring theme.

Historical and Social Context: Understanding criminal law requires considering its development within historical and social frameworks, recognizing that laws evolve in response to societal changes and pressures.

8. Political and Juridical Individualism

Psychological Individualism: The law often views individuals as rational agents responsible for their actions, but this perspective can overlook social and psychological factors influencing behavior.

Political Individualism: Emphasizes individual rights and freedoms, sometimes at the expense of collective social responsibilities.

Critical Analysis

1. Contradictions within Criminal LawNorrie emphasizes the inherent contradictions within criminal law, arguing that the law is not purely rational or objective but is influenced by historical, social, and political factors. These contradictions often manifest in the tension between formal legal principles and substantive moral judgments. For instance, the legal system’s reliance on strict liability can lead to convictions without fault, conflicting with the moral notion that punishment should be based on culpability.

2. The Influence of Social and Historical ContextNorrie critically examines how criminal law has been shaped by its social and historical context. The Enlightenment period introduced ideals of individualism and rationality, which continue to influence contemporary legal doctrines. However, these ideals often conflict with the realities of social control and the interests of powerful groups. Norrie argues that middle-class interests have historically driven legal reforms, embedding certain ideological biases within the law.

3. Legal Formalism vs. Moral SubstantivismNorrie critiques the dominance of legal formalism, which emphasizes strict adherence to legal rules and procedures, often at the expense of substantive justice. He contrasts this with moral substantivism, which focuses on the underlying moral and social contexts of legal issues. This tension is evident in cases involving mens rea, where the law’s abstract and cognitive approach to intention and recklessness can overlook the moral complexities of individual actions.

4. The Role of Mens ReaNorrie highlights the complexities and conflicts in defining and applying mens rea. The law’s distinction between intention, recklessness, and negligence can lead to inconsistent and sometimes unjust outcomes. For example, the shift from objective to subjective standards of recklessness (as seen in the transition from Caldwell to G) reflects an ongoing struggle to balance legal precision with moral fairness.

5. Corporate and Strict LiabilityThe application of strict liability and corporate liability raises significant ethical and practical questions. Norrie criticizes the use of strict liability for its potential to convict individuals and entities without proof of fault, arguing that it undermines the principle of culpability. He also explores the challenges of attributing criminal responsibility to corporations, highlighting the limitations of the identification and aggregation doctrines.

6. The Dynamics of Actus ReusNorrie analyzes the complexities of actus reus, particularly the distinction between acts and omissions. He argues that the law’s approach to omissions, which often involves a failure to act where there is a duty to do so, reflects broader social and moral expectations. The debates over voluntariness and causation further illustrate the law’s struggle to account for the nuanced realities of human behavior.

7. Defenses and Moral JustificationsNorrie examines the defenses of necessity, duress, insanity, diminished responsibility, and self-defense, highlighting their moral and legal implications. He argues that these defenses reveal the law’s attempt to reconcile formal legal categories with substantive moral considerations. For example, the necessity defense challenges the rigid boundaries of legal rules by introducing context-based moral judgments.

8. Sentencing and PunishmentNorrie critically assesses various theories of sentencing and punishment, such as deterrence, retributivism, rehabilitation, and incapacitation. He argues that these theories often reflect conflicting ideological commitments and social objectives. The emphasis on retributive justice and proportionality, for instance, can clash with rehabilitative and preventive goals, leading to tensions and contradictions in sentencing practices.

9. The Political Nature of Criminal LawNorrie concludes that criminal law is inherently political, shaped by broader social and economic forces. He argues that juridical individualism, which underpins many legal doctrines, serves both repressive and expressive functions. The law’s focus on individual responsibility and culpability can obscure the social conditions that contribute to criminal behavior, reinforcing existing power structures and social inequalities.

10. Law as PraxiologyNorrie introduces the concept of praxiology, suggesting that criminal law should be understood as a practice embedded in social and historical contexts. This approach emphasizes the dynamic and evolving nature of the law, encouraging a critical perspective that recognizes its limitations and the need for ongoing reform.

Real-World Applications and Examples

1. The Role of Historical Context in Legal Reforms

Example: The Enlightenment Influence on Penal ReformDuring the Enlightenment, reformers like Cesare Beccaria advocated for rational and humane approaches to punishment, emphasizing deterrence and retribution. This historical context influenced modern penal theories, leading to the development of more systematic and principled approaches to criminal justice.

2. Contradictions in the Application of Mens Rea

Example: R v Cunningham (1957)The case established the subjective test for recklessness, where the defendant must foresee the risk and proceed regardless. This case highlights the tension between subjective awareness and objective standards, a recurring issue in criminal law.

3. Corporate Liability in Practice

Example: P & O Ferries (1990s)The company was held liable for corporate manslaughter after the Herald of Free Enterprise disaster. This case illustrates the challenges of attributing criminal responsibility to corporations and the limitations of existing legal doctrines like the identification doctrine.

4. The Application of Strict Liability

Example: Alphacell Ltd v Woodward (1972)In this environmental pollution case, the company was held strictly liable without proof of fault. The decision underscores the ethical and practical debates surrounding strict liability offenses, particularly in regulatory contexts.

5. Defenses and Moral Justifications in Practice

Example: R v Dudley and Stephens (1884)In this landmark case, the defendants were charged with murder after resorting to cannibalism to survive at sea. The necessity defense was rejected, illustrating the complex moral and legal considerations involved in such cases.

6. The Complexity of Causation

Example: R v Blaue (1975)The “thin skull” rule was applied, where the defendant was held liable for the victim’s death, despite the victim’s refusal of a blood transfusion due to religious beliefs. This case highlights the principle that defendants must take their victims as they find them, complicating the determination of legal causation.

7. Insanity and Diminished Responsibility

Example: R v M’Naghten (1843)The M’Naghten Rules established the criteria for the insanity defense, focusing on the defendant’s ability to understand the nature and quality of the act or to know it was wrong. This case illustrates the ongoing tension between legal and psychiatric perspectives on criminal responsibility.

8. The Defense of Self-Defense

Example: R v Martin (2002)The defendant’s use of excessive force in self-defense resulted in a manslaughter conviction. The case underscores the legal principles of necessity and proportionality in self-defense claims, highlighting the complexities in adjudicating such defenses.

9. Sentencing and Rehabilitation

Example: Drug Treatment and Testing Orders (DTTOs)These orders aim to rehabilitate drug offenders through mandatory treatment programs rather than incarceration. The initiative reflects a shift towards addressing the root causes of criminal behavior, emphasizing rehabilitation over punitive measures.

10. The Preventive Turn in Criminal Law

Example: Anti-Social Behaviour Orders (ASBOs)Introduced in the UK to address low-level disruptive behavior, ASBOs exemplify the preventive turn in criminal law. They aim to prevent future harm by imposing restrictions on individuals’ behavior, raising questions about the balance between preventive measures and individual rights.

11. The Impact of Technological Advances on Criminal Law

Example: Computer Misuse Act 1990This legislation addresses crimes related to unauthorized access to computer systems, reflecting the evolving nature of criminal behavior in the digital age. It highlights the need for the law to adapt to technological advancements and emerging threats.

12. The Interplay Between Legal and Moral Responsibility

Example: R v Latimer (1886)The doctrine of transferred malice was applied, where the defendant’s intention to harm one person was transferred to the actual victim. This case illustrates the law’s attempt to reconcile legal principles with moral culpability.

13. Gender and the Law

Example: The Feminist Critique of Self-DefenseFeminist legal scholars have critiqued traditional self-defense doctrines for their failure to adequately protect women who kill in response to prolonged domestic abuse. This critique has influenced legal reforms, such as the introduction of the loss of control defense, which considers the context of abuse.

14. The Role of Human Rights in Criminal Law

Example: R v A (No 2) (2001)This case addressed the conflict between the right to a fair trial and the prohibition of using prejudicial evidence. The Human Rights Act 1998 played a crucial role, highlighting the importance of balancing individual rights with effective law enforcement.

15. Reforms in Sentencing Practices

Example: The Sentencing Council for England and WalesEstablished to promote consistency and transparency in sentencing, the Council develops guidelines for judges to follow. This initiative reflects an ongoing effort to balance retributive and rehabilitative goals in the criminal justice system.

16. Ethical Dilemmas in Necessity and Duress

Example: The Separation of Conjoined Twins (Re A (Children) (2000))The court allowed the separation of conjoined twins, knowing it would result in the death of one twin but save the other. This case exemplifies the ethical complexities involved in applying the necessity defense, particularly in medical and life-and-death situations.