Today’s post is by Arlie Loughnan who is Professor of Criminal Law and Criminal Law Theory and Co-Director of the Institute of Criminology at the University of Sydney. She is the author of Manifest Madness: Mental Incapacity in Criminal Law (OUP 2012).
Criminal responsibility – the basis on which individuals are called to account for criminal conduct, and the form or structure of the criminal law – is now central to criminal law, but it is in need of re-examination. In the context of Australian criminal laws, my book, Self, Others and the State: Relations of Criminal Responsibility reassesses the general assumptions made about the rise to prominence of criminal responsibility in the period since around the turn of the twentieth century. In my account, I pay close and careful attention to the intricacies of developments in criminal responsibility, and reconsider the role and significance of criminal responsibility in criminal law. I argue that criminal responsibility is significant as it organises keys sets of relations – between self, others and the state – as relations of responsibility. Recognising this role for criminal responsibility shows that it is the means by which matters of subjectivity, relationality and power make themselves felt in the criminal law in particular ways. My analysis reveals the gradual and distinctive way in which criminal law came to be organised around criminal responsibility, and exposes the complexity and dynamism of the relations of responsibility that subtend criminal responsibility principles and practices.
My book comprises detailed studies of decisive moments and developments in criminal law since the turn of the twentieth century, and presents original explorations of relations of responsibility. For the readers of this blog, one of these three explorations of relations of responsibility may be of particular interest: relations of responsibility around the self. In my analysis of the self in relations of responsibility, I focus on the gendered self and examined women’s responsibility for crime. I argue that, on the level of legal form, women’s responsibility for crime is marked by particularity and specificity – as opposed to the generality and universalism claimed for criminal responsibility under the dominant legal-philosophical account. This particularity and specificity is evident in what I call atypical responsibility forms – those forms that are restricted to particular individuals committing particular offences in particular contexts, and in which elements, such as offence and defence, conduct and fault, that are usually separate, are mixed together. Together, two sets of atypical responsibility forms determine the contours of women’s responsibility for crime over the twentieth century.
These two sets of atypical responsibility forms governing women’s responsibility for crime correspond to different relations of responsibility between self, others and the state. In the first half of the twentieth century, legal accommodation of violence by women meant that relations of responsibility centred on the relations of the accused woman with herself, where this relation was oriented around a personalised and psychologised notion of individual integrity. In recent decades, legal accommodation of violence against women oriented the self in relation to others, encompassing an extended sense of women’s autonomy, and implicating other actors, including state actors such as the police, in fulfilling that autonomy. This has meant that women’s responsibility for crime now has an ameliorative tenor, with the atypical responsibility forms that now populate the criminal law constituting an admission of state failure to protect women from violence.