The criminal law's person By C. Lernestedt, M. Matravers (Eds.), Oxford: Hart. 2022. pp. 216. £85.00 (hbk). ISBN: 9781509923748

Abstract

The criminal law's person is a multifaceted exploration of how substantive criminal law takes humans – or makes them out – to be. As explained in the editors’ efficient and perspicacious introduction essay, the criminal law's person might be set by how people actually are, what they ought to be, or some purpose-driven fictional construct (p.8). The book's final essay, ‘Implicit bias, self-defence and the reasonable person’, by Jules Holroyd and Federico Picinali, unpacks ‘reasonable person’ belief-based exculpatory tests in defensive force law in England and Wales and the United States and evaluates them for their facilitation of morally problematic cognitive bias, which, the authors conclude, ‘cannot be avoided in the presence of racist social structures’ (p.167). The authors push past the ‘reasonable person’ as the empirically ordinary person (p.179) to the possessor of reasonably-based and non-culpably held beliefs. But there remains, I think, further scope for consideration of the ‘reasonable person’ as an optional heuristic for getting at the actual standard of reasonableness. At least one of the jurisdictions under consideration does not even use the phrase ‘reasonable person’ in statute, but uses ‘reasonable’.¹ The standard of ‘reasonable’ itself is never wrong, only its application can be wrong, and the authors’ points about implicit biases could be redeployed in regard to its application.

Holroyd and Picinali invoke a conduct rules and decision rules framing distinction for their evaluation. This dual evaluation is perhaps one reflection of what Claes Lernestedt (in his contribution, ‘Standard-setting versus tracking “profound” blameworthiness: what should be the role of the rules for ascription of responsibility’) identifies as criminal law's tension between forward-looking ambitions and its limiting constraints (p.56). Lernestedt calls for criminal law to seek ‘“profound” blameworthiness in the concrete person’ (p.73). This concrete person is the actual person, not the construct, and to appreciate them in criminal law we need more input from disciplines such as psychiatry and psychology (p.73). Broadly speaking, similar concern arises in the essays by Michael Thorburn (‘In search of the criminal law's person’), Alan Norrie (‘Victims who victimise: guilt in political theory and moral psychology’) and Craig Reeves (‘Responsibility beyond blame: unfree agency and the moral psychology of criminal law's persons’). These essays each develop critical reaction to the criminal law orthodoxy that assumes the would-be (non-insane) criminal defendant as a rational autonomous agent. They question the very possibility of the criminal law's authority. Thorburn is quite demanding about the level of political understanding needed on the part of the defendant for legitimate criminal liability imposition. It is difficult to go along with Norrie's styling of the recipient of structural social injustice as a ‘victim’ in the same sense as a victim of a crime. Reeves proceeds with more nuance and no hyperbole. Norrie and Reeves both weave masterfully and informatively through, among other things, psychological guilt literature, as Thorburn does with 20th-century criminal responsibility theory.

Kai Hamdorf, a judge of the German Federal Court of Justice, contributes ‘The criminal law's person and normative elements in the legal definition of excusing circumstances’. This is a concise and elucidating account of German criminal law's self-rationalisation that pays critical attention to how it sorts exculpating from non-exculpating human disordering. Hamdorf regrets that matters of practicality and policy determine the conceptualisation of the person. But the person is not necessarily reconceptualised by the rules under scrutiny, for example, the rule requiring that blood alcohol be 10% higher for severe crimes than for lower-level crimes in order for a defendant to avail of possible partial or full exculpation due to intoxication (p.48). Hamdorf notes the standard justification as ‘people generally have a psychological hindrance or barrier to kill other human beings’ and says it is ‘hard to imagine that any psychiatrist would say that 10 per cent more alcohol is needed for a loss of control in murder than in cases of bodily harm’ (pp.48–49). But such line-drawing rules are not attempting to precisely reflect physiological and neurological reality in the first place, they do not pass or fail rational evaluation solely by reference to psychiatry; they are meant to be arbitrary (within limits) and unmistakably policy-driven. As it happens, German criminal law is a comparative leading light at doing the thing – facilitating intoxication and mental disordering to be variously and non-bluntly reflected in criminal liability – which Hamdorf says falls short of German constitutional standards of responsibility and blameworthiness (p.50).

Matt Matravers, in ‘The criminal law's various persons’, uses an ex ante and ex post frame for surveying the criminal law's conceptualisations of the person. Matravers, like Hamdorf and several other contributors to The criminal law's person, in effect, urges the criminal law to get a more accurate picture of the actual person than currently the case. No one calls for the criminal law to double down on its fictions. Nonetheless, Robin Zheng (‘Attributability and accountability in the criminal law’) develops a rich analytical distinction that, among other things, could aid rationalisation of current criminal law. Responsibility as attributability is simply the appraisal of an action. Responsibility as accountability is the assigning of some consequence, such as a burden, for the action (p.78). For some theorists, attributability is a precondition to accountability. Zheng shows how attributability and accountability converge in explaining criminal responsibility: attributability reflects moral responsibility and accountability reflects the political question of the distribution of duties and burdens across the community via criminally enforced obligations and punishment (p.80). According to Zheng, justificatory accounts of criminal law may be classed as attributability-first or as accountability-first accounts (p.77). Attributability-first accounts are more concerned to respond to the criminal law's person as a moral agent; they have a metaphysical understanding of the person. Accountability-first theories, which are less prominent than attributability-first accounts, are concerned with the person taking their place in the community's network of duties; these theories have a political conception of the person. It would seem that accountability-first theories would be more comfortable with fictional constructs of the person than attributability-first theories. But not always. Thorburn's essay, for instance, could be read as an accountability-first theory that needs the criminal law's person to (really) be something they not always are. This being just one connecting thought prompted by this fascinating book of individually excellent criminal law theory essays which collectively amount to something even greater than their sum.