Abstract
Our practice of criminal law is a deeply inadequate attempt to judge, a putatively ethical institution in an unethical social world, torn between its aspiration to judge justly and its function of coordinating social unjustice. But it does attempt to deal with real and deep problems of ethical judgment, and can be grasped only by apprehending the internal dynamics of law’s struggle to judge appropriately, the deeper nature of the real problems of moral and ethical judgment with which it struggles unsuccessfully, and the socio-political shaping of its distorted attempt to engage with them. Such, anyway, is the gist of Alan Norrie’s excellent second volume of essays.
The collection is divided into two parts, the relation between which is explained in a new introductory essay which distinguishes the internal and external aspects of criminal law, or, in Norrie’s terms, law’s ‘architectonic’ and its ‘constellation’ (p. 3). Law’s architectonic is the internal conceptual structure of its mode of judgment, what criminal theorists tend to call the ‘general part’ of criminal law: a complex system of normatively interpreted kinds of conceptual distinction, and the organization of the hierarchical relations in which they stand to one another. This architectonic purports to be an abstract, technical, neutral, subjectivistic, psychologistic and descriptive system of judgment—what Norrie calls a ‘morality of form’ (p. 6)—focused on the ‘agency and mental states of a universally constituted, abstractly responsible, individual’ (p. 6) to the exclusion of the concrete substance and context of life. The idea is to exclude substantive ethical and political dispute from criminal law, yet, Norrie’s argument runs, this it cannot manage. Abstract specifications of wrongdoing, fault and responsibility simply cannot carve even near the joints of moral reality, and the criminal law is itself recursively forced to recognize this through doctrinal concessions and compromises with what has been left out, which snowball throughout the criminal law. The result is a body of doctrine that is conflicted and inconsistent—‘antinomial’ (p. 7)—at its core.
The three essays forming the core of Part I elaborate this thought through careful and searching explorations of difficulties the criminal law runs into in attempting to judge those who kill. Chapter 3 explores the difficulties of adequately capturing and differentiating fault in homicide, arguing that the moral straitjacket of law’s morality of form prevents any satisfying answer to the problems of judgment involved. In focusing on what the agent intended, knew or foresaw, to the exclusion of their motives in context, law’s formal morality cannot make the kinds of ethically substantive judgments that are crucial to distinguishing grades of wrongdoing and fault. Indeed, it is not even on the right track: an intentional killing may be less culpable than a foreseen one, and a foreseen one may be less culpable than one that was not foreseen because the agent simply gave no thought to the matter. This forces on the law doctrinal fudges and compromises that proliferate unstably, which Norrie explores meticulously.
A striking problem for law is that even some intentional killings are plausibly non-culpable, even admirable—the topic of the chapter on assisted dying. The case of Kay Gilderdale, who reluctantly killed her seriously ill daughter in line with the daughter’s own clearly expressed wishes, is central. In law, Gilderdale was guilty of murder, but the jury acquitted, and the judge openly questioned the decision to prosecute. Norrie’s discussion is nuanced, emphasizing the difficulties that legal form presents for substantive ethical judgment: he takes no side on the de-criminalization question, suggesting that it admits no easy answer because of the constraints legal form imposes on it: the distinction between a culpable and a non-culpable or even admirable killer is impossible to articulate in formalist moral terms, and reliance on ‘jury equity’ is in some circumstances law’s only refuge. But the law also seems, conversely, to exculpate those who we might expect to be held more exactingly to account, as a chapter on the operation of self-defence in the context of police killings illustrates. It argues that the seeming immunity of police officers who kill members of the public is rooted in the liberal subjectivism of the law—the leeway it offers to citizens’ rights to defend themselves against attackers. Law’s subjectivism is oriented to respecting individuals’ formal freedom, but it means self-defence is judged in terms of what the defendant actually believed, however unreasonable, leaving no room for judging police officers according to a standard of what they should have realized or considered. Liberal justice becomes entangled with authoritarian state power. A chapter on the wider political context of criminal law in the neo-liberal period fleshes out this thesis of the entanglement of liberalism and authoritarianism.
The last chapter in Part I is also the most important, defending Norrie’s critique of law’s morality of form against the Hegelian objection, advanced by Alan Brudner (2009), that law’s morality of form is perfectly legitimate and appropriate because it respects formal freedom and enshrines rights. Norrie responds by defending the thesis that criminal law necessarily appeals to substantive ethical judgment beyond abstract right in ways that the Hegelian view cannot make sense of, and presses the ‘incapacity of [criminal law’s] formal body of principles properly to reflect the distinction between punishment and violence’ (p. 108). (His argument here deserves careful attention; indeed, one hopes for a lengthier treatment at some point in future.)
The response to Brudner brings out a problem that had already existed in Norrie’s work: criminal law is said, quite plausibly, to be a systematically inadequate morality of form whose subjectivist core necessitates all manner of compromises that reintroduce the substantive ethical judgment that the formalism left out. But Norrie seems to suggest that the resulting system is riddled not merely with inconsistencies, but genuine failures of ethical judgment. To vindicate this thought, a deep theory of the grounds of ethical judgment is owed, along with an account of criminal law from the outside, in its ‘constellation’ with both the real grounds of ethical judgment and moral truth, and the socio-historical reality in which law emerges as a systematically flawed attempt to approximate the former, and in Part II Norrie begins to develop it.
The sense that criminal law really strives after a deeper, substantive sense of judgment and justice is confirmed when we confront the problem of war guilt, the focus of the title essay. Taking Hannah Arendt’s (1976) Eichmann in Jerusalem as the starting-point, Norrie’s concern here is, noting that legal categories of culpability seem inadequate to judgment, to ask what guilt and responsibility are really about beyond law’s formal categories. The discussion moves from the apparent moral idiocy of an Eichmann to the thought that the ‘ethical ground of responsibility’ (p. 146), beyond subjectivism, might be found in the ‘metaphysical element in being human’ which ‘operates through people but also beyond them’ (p. 144). This is articulated by appeal to Karl Jaspers’ (2000) notion of ‘metaphysical guilt’ and to Derrida’s (2001) ‘ethics of forgiveness’, but as Norrie admits, these suggestions are pretty gestural. In the three remaining chapters, a more determinate account of the deep ontological grounds of substantive ethical wrongdoing, guilt and responsibility is pursued in critical realist terms. Through studies of good and evil (Chapter 8), freedom (Chapter 9) and responsibility (Chapter 10), the ‘metaphysical element in being human’ is reconstructed in critical realist/Aristotelian terms as the bearing of the human form, the sharing of a common human nature. Freedom, now, is the freedom of a determinate sort of being whose capacities for choice and reason are not free-standing but rather naturally and socially embodied. For Norrie, human freedom must be the freedom of beings who are to begin with needy, dependent and socially interdependent, whose reliance on one another is as primordial as their desire to affirm their separateness. Formal freedom is not simply irrelevant, but it is only a meagre partiality whose immanent aspiration is substantive autonomy, flourishing and ultimately a community of universal flourishing.
But for now, we live, so Norrie sees it, in a social world that is inadequate to our nature, and in the meantime we must act and we must judge. We do so through a distorting lens but we sense that we are trying to get at something deeper. Good and evil are categories that have been idealistically misunderstood but we can retrieve their truth by interpreting them as referring to a practical orientation to, and against, the realization of real freedom. It is to this orientation that substantive ethical judgment is answerable. Judgments of guilt and responsibility are limited attempts to get at something deeper, the metaphysical sources of guilt and responsibility. This makes judgment a complex affair. Legal categories based on prioritizing formal freedom are bound to struggle, as they do with war guilt, collective guilt and survivor guilt (the discussion of Primo Levi’s writings is rich), as much as they do with the selfless loving acts of a Kay Gilderdale. Criminal law, as one contingent practice of judgment, must appeal to substantive ethical standards in inconsistent ways, and for Norrie, the real ground and referent of such standards is the relation of an action to solidarity with the real freedom (not merely formal freedom) of others. That is what criminal law’s judgment is trying, usually unsuccessfully, to capture.
Norrie’s account of the deep grounds of ethical judgment is a version of what we might call negative Aristotelianism, articulating a picture of the difficulties facing not only criminal law but any attempt to judge in a privative social world, and it is a promising and rich avenue. Still, the account offered is not perfect. It is a pity that Norrie does not have a bit more time for Adorno—whom he seems to lump together with the poststructuralists (p. 168)—since Adorno is the major philosopher to have developed just such a negative Aristotelianism, of great power, that engages directly with the problems of freedom, judgment, guilt and responsibility in which Norrie is interested. Norrie’s engagement with psychoanalysis is promising, for psychoanalysis seems to be the right place to look for the moral psychology needed to link ethical judgment to human nature, but the engagement here is a little cursory (Norrie’s current work is ploughing this furrow more thoroughly). And many, including critical realists, will be unconvinced of the importance of Bhaskar’s late ‘metaReality’ writings, which make the odd appearance here, and the critical realist ontology that undergirds Norrie’s account is a powerful and important position that should not be dismissed on the basis of unease with ‘metaReality’.
But while there are details to take issue with, the diagnoses of, and attempts to move beyond, criminal law’s problems here are powerful, and Norrie manages throughout to combine deep theoretical reflection with exploration of concrete real-world problems so as to both shed light on the latter and bring the theory to life. His conclusions will not be palatable to everyone, but though Norrie offers no easy consolations, his writing is permeated with a humane patience and searching thoughtfulness, and his posing of the problems and charting of the ways forward is a major contribution to thinking about judgment and justice.