Introduction

The predominant approach to the teaching of criminal law in the United Kingdom stems from the theoretical assumptions of legal positivism. Legal rules can be examined as a discrete body of knowledge, isolated from the analysis of politics, sociology and other disciplines which might otherwise be thought to be relevant. These rules are grouped around central principles (for example, of individual liberty and responsibility) which are orthodoxically presented as lying at the heart of the law and which govern to a large extent the organisation of the standard texts. Criminal law consists of a set of rules based upon principles of individual justice and is to be understood as Part of an enterprise that is essentially, though imperfectly, rational. My argument will be that the philosophical individualism that lies at the heart of criminal law is flawed and limited in important ways, and that the result of this is that legal doctrine, far from being a Potentially rational and principled whole, as lawyers in the legal positivist tradition argue, is in its essence as much characterised by unreason and lack of principle. The key to understanding is to expect continuous tensions and illogic, not to look for rationality and coherence.1

Law and the Juridical Individual

My starting point is the ideological form of the abstract juridical individual, which lies at the core of criminal law doctrine. This ideology, which has both psychological and political elements, places the individual at the centre of legal and moral discourse, and is reflected in criminal law doctrine through principles of individual responsibility, and rules which respect the freedom of the individual. But this legal individualism is a particular form of individualism, developed out of a particular historical period 2 and having very definite limits imposed upon it.

Psychological Individualism

The law's starting point is the idea of a rational, intentional, voluntary actor, but this actor is viewed in isolation from the social context within which his or her actions occur. This idea, which informs the general principles of individual responsibility, is fundamentally myopic in that it ignores the nature of criminality as a social phenomenon, and consequently has to find ways of excluding that nature from its gaze.

Political Individualism

The individualism of the law is political as well as psychological. The individual is presented as an actor who is free from political interference except in so far as this is permitted by an already established system of laws. This guarantees his or her freedom because the law is a rational, deductive system which controls what the state, including the judges, can do. Further, the basic principles of state intervention in criminal law are principles of individual right, stipulating the requirement of a responsible ('guilty') individual before punishment can be awarded. This liberal view of the judicial role is again incomplete, for while the judges do work within a doctrinal tradition of individualism and rationalism, these elements operate as conditional, rather than absolute, constraints upon their thought. The judges are not simply the neutral occupants of a value-free role, they form part of a sociopolitical elite, which operates through a discourse of rationalism, individualism and neutrality. They ate, as one judge put it, 'at least as much concerned as the executive with law and order' (Lord Devlin quoted in Griffiths, 1985) and this concern runs counter to the values of political individualism within doctrine. This ambiguous role of the judges accounts for two kinds of contradiction which riddle criminal law. One concerns the existence of conflicting substantive standards within doctrine, as the judges move unreflectively from rules which more strongly assert the requirement of individual responsibility to rules which are weaker in this respect, making it easier to convict the individual. A second contradiction relates to the judges' ambivalent attitude to the requirements of logic. Sometimes a judge will extol the virtue of reason as the most binding requirement on his decision, while at other times he will discount it as a matter of secondary importance. 3 Frequently, he will pay lip-service to it, while surreptitiously denying it in his arguments.

Exemplifying the Critical Approach

Psychological Individualism in Criminal Law

(i) Actus Reus

The law's assumption that the individual is a self-activating social atom comes up against the inherent social reality of individual life. There is first of all the question of the voluntariness of acts. This is interpreted very narrowly (R. v. Bratty [1963] AC 386), so that an act is only involuntary if the individual psyche is actually unconscious. Yet there are other kinds of involuntariness, which possess much more of a social dimension, that the law chooses to ignore. For example, there is the involuntariness which accompanies drug addiction, where the psyche is operative but ensnared in the social and physiological context of the addiction. Similarly, there is the question of whether an individual who breaks a law for religious beliefs that he or she regards as binding has acted voluntarily. The criminal law would deny this vehemently, since it would allow many people to get off on crimes of conscience. Yet, where a strongly held religious belief was that of the victim of a crime, who refused a blood transfusion as a consequence and died, this was understood as a case where the victim had acted involuntarily (R. v. Blaue [1975] 3 AER 446), with the consequence that the accused was still potentially guilty of murder.
 
Similarly, causation operates to locate an individual as the cause of a crime, while denying all the surrounding causal circumstances within which the defendant's action occurred. In a famous American case (Commonwealth v. Welansky in Clarkson & Keating, 1984, pp. 32~28), involving a fire in a nightclub, a prankster removed a light bulb, which led to a waiter lighting a match while replacing it, which led to a fire, which left 500 people dead. The owner of the club had installed defective wiring and flammable materials, and had failed to ensure that the fire exits were operative, while the local authority fire department had the week before passed the club as safe. In this set of multiple causes, at which level should responsibility lie? Only the owner was convicted, but what of the fire department, the prankster and the waiter? What of the broader social factors that lead nightclub owners to use cheap, flammable materials in order to cut financial costs and increase profits? If the profit motive were a cause, one could nonetheless be sure that it would not be found in the dock (Lacey, Wells & Meure, 1990, pp. 243-52). Because of the need to attribute causation to an individual, whose causal acts always occur within a wide social context, the law is inherently unstable. It splits off the individual from the social by using a distinction between factual and legal causation, but the nature of the latter has never been properly explained, so that the law looks like a series of ad hoc, criteria-less decisions. In a world of multiple causation, it cannot be otherwise.
 
Finally, in omissions, the same problem emerges from the law's roots in nineteenth-century individualism, where the existence of a duty to act was always more easily linked to the idea of a contract, and the capacity of individuals to pay their way, rather than to the idea that individuals as social beings were largely interdependent, even in the 'obvious' context of the family (Glazebrook, 1960). Because the law has these roots, it finds it extremely difficult to create duties of care where the judges think that social interdependence ought to be upheld. Thus in R. v. Stone and Dobinson ([1977] 1 QB 354), where the brother of a deceased woman and his common-law wife had omitted to care for her while she was living in their house, the judges could find no solid legal basis for the liability of the defendants and so imposed, without existing legal authority, a duty of care on blood relatives and those who 'undertake' (the judges exploited the ambiguities of this term) 4 to look after ailing third parties.

(ii) Mens Rea

A similar issue emerges in the refusal of the law to take the motive of the accused Into account. intentions are not conjured out of thin air, they are the product of practical human decisions combining desires (motives) and beliefs (Moore, 1984, Chs. 1 and 2). The traditional individualist analysis recognises this, but regards the motives leading to the formation of intentions as psychological (anger, jealousy, greed) rather than as socially formed. Were it to recognise the social context within which individuals come to act, and to see motives as stemming from the location of individual acts, it would not be so easy to blame the individual. The way around this has been so to structure legal doctrine that intention becomes crucial to liability and motive becomes irrelevant. Then, at the end of the trial, when justice has been done and a criminal has been properly convicted, the doctrine can be put on one side and motive allowed back into the courtroom, in the non-threatening guise of a factor in mitigation of sentence.
 
Historically, there was a clear political aim behind the separation of intention from motive. The poor or dispossessed might claim that their theft or rebellion was not wrong at all but was rightful ill a context of starvation or oppression O-Jay, 1977). This amounted to saying that they had acted from a good or justifiable motive. Lawyers are able to marginalise such overt challenges to the order of things by denying the relevance of motive to crime (Hale, 1971; Hay, 1977). A good example is in the law of theft, where motive is relevant on the question of whether an accused acted dishonestly (Theft Act 1968, s2). This gives rise to an important tension: should the judges accept that the question of dishonest motive is at large for defendants to argue about in front of juries and magistrates, or should they try to find a definition of dishonesty that excludes such possibilities? The issue is political, since lurking behind their deliberations are the figures of the animal-rights activist and the latterday Robin Hood (R. v. Ghosh [1982] QB 1053). In practice, they have gone for an unsatisfactory compromise which seeks, unsuccessfully, to exclude politics from the courtroom Williams,1982, pp. 728-30). The issue arises also in the defences of duress and necessity, for these amount to claims that the accused was not responsible for his or her motive, which resulted from natural or social circumstances beyond the accused's control. The problem stems from a reductio argument (Lord Simon in R. v. Lynch [1975] 653 at 686-7). Do people form motives to commit crimes because of threats of violence (duress) or the necessity of their situation? In our society, many people are homeless and hungry, so that if necessity were admitted as a defence, this 'would open a door which no man could shut' (Lord Denning in London Borough of Southwark v. Williams [1971] 2 AER175). The result of this contradiction between individual responsibility and the social context of wrongdoing is the highly anomalous one that some kinds of coercion (those that fall under the head of duress) are recognised as leading to acquittal, but others (those under the head of necessity) are not.
 

Political Individualism in Criminal Law

The abstract individual is at the core of legal doctrine as a political atom, which the law must respect. But the question remains of just how much content the law will give to this concept, and this is a matter for negotiation as the content rubs up against the judges' conception of what is necessary in the interests of raison d'etat or 'law and order'. In this situation, law's resyect for individuals is not stable, but shifting, according to the political climate, the views of particular judges, and even the particular facts of the case on appeal.
 
In intention, this can be seen in the shifts that have taken place in the mens rea of murder from the objective 'natural and probable consequences' test of Smith ([1961] AC 290) to the subjective probable consequences test of Hyam ([19741 2 AER 54) to the virtual certainty test of Moloney ([1985] AC 905), Nedrick ([1986] 3 AER 1) and Hancock & Shankland ([1986] 1 AER 644). These three quite different and contradictory accounts of what is meant when we say that an individual intends an act have all been central to the mens rea of murder in recent years. Nor is the matter resolved by the recent cases, for there remain important conflicts within them (Norrie, 1989). At the back of all three rules, there lurk important political objectives. Thus in Smith, the objective test arose in the context of the killing of a police officer shortly after the abolition of the 'constructive malice' rule, while in the latter cases, an important consideration emerging out of the judgements is the possibility of convicting a political bomber for murder rather than manslaughter when he or she plants a bomb intending only to frighten.
 
In recklessness, the law is in a terrible mess because of the judicial desire to remove subjective questions of awareness of risk from the remit of the jury, which, as a popular body, is regarded by many judges as unreliable (Smith & Hogan, 1988, P. 236). This has led to the existence of two standards of recklessness according to the crime charged, with often paradoxical results (Smith & Hogan, 1988, P. 67). The question of whether an accused must have been aware of a risk, or whether it is sufficient that a 'reasonable man' would have recognised it, is part of a broader tension within the law between subjective and objective tendencies, which arises in the law of mistake (DPP. v Morgan [1976] AC 1982, R. v. Gladstone Williams [1983] 78 Cr App R 276, Beckford v. R. [1987] 3 All ER 425, R. v. Graham [1982] 1 WLR 294), of provocation (R. v. Camplin [1978] AC 705), and of duress (R. v. Graham, R. v. Howe [1987] AC 417) as well as in relation to recklessness. Cases usually have the appearance of falling on one side or the other of this divide according to happenstance rather than design. Thus where a mistake relates to the actus reus, or to the defence of self-defence, an honest mistake will suffice, but where it is a mistake as to the existence of duress, it must be a reasonable one. Generally speaking, an objective test makes it easier for the prosecution to gain a conviction because it is unnecessary to inquire into the particular subjective state of mind of the accused, while a subjective approach attracts the approval of the academic writers within the positivist tradition, since such an approach affirms a 'thick' notion of liberal political individualism. It is noteworthy that a considerable amount of passion rides on this issue, but the academics claim too much when they argue that a subjective approach is the proper orientation of the law. That would only he so if the law were, as they claim, a rational, principled whole. It is not, it is a conflicting gruel of contradictory ingredients because of the contradictory location of judicial ideology at the intersection of liberal principle and politics.
 
These conflicting pressures become most apparent where an appeal forces the judges into a corner because the logic of the existing rules points in one direction, but their political instincts point in another. The liberal theory proposes that it is their heads which should rule their hearts, but this by no means always happens (Norrie, 1990, Ch. 8). Thus in Caldwell ([1982] AC 343), the subjective test for recklessness was well known and had been recommended to Parliament by the Law Commission as the test to be applied in the Criminal Damage Act 1971. While Lord Diplock conceded the need to establish the intention of Parliament, he made no reference at all to the Law Commission's view, and condemned a rule that had been in operation for most of the century as 'fine and impracticable' (C1982] AC 341). Similarly, in Majewski ([1977] AC 443), the problem of intoxication was dealt with by establishing an untenable distinction between crimes of basic and specific intent. The problem for the judges is that intoxication is both the source of much crime and a potential route to the denial that a person formed the necessary intent. They got around this by saying that for the more serious crimes, labelled crimes of specific intent, evidence of intoxication could be relevant to mens rea; on the less serious ones, labelled crimes of basic intent, it could not. They have never explained satisfactorily the basis for the basic/specific distinction or how the intent in crimes of basic intent was in some way not a 'real' intent to be established according to the evidence. Equally, in duress, the judges played around with the distinction between principals in the first and second degree to murder in the cases of Lynch and Abbott ([1977] AC 755), without ever explaining satisfactorily why the defence was available in the former but not the latter instance. Eventually, they admitted this themselves, but resolved it by overruling their own decision in Lynch (in R. v. Howe [1987] AC 417).
 
In all these cases, it transpires that the law's logic is by no means an immovable object, protecting individuals against state policy. Where needs must, rationality will be discarded, and frankly so.

Conclusion

The legal positivist is right to see the 'law' as an important phenomenon, but wrong to imagine that it can be understood as a politically neutral system of rules governing any polity. Criminal law is a mechanism of social control which evolved out of the struggle for power and control between conflicting social classes, but one which is mediated by an ideology of political and psychological individualism. That ideology gives rise to a set of categories at the heart of the law which operates both to condemn and to Protect individuals. It is the contradictory nature of that position that is at the nub of criminal law doctrine through the systematically conflicting inclusions and exclusions of acts and contexts, of individual and sociopolitical interests. These conflicts give to criminal law its stubbornly irrational appearance. From this standpoint, we not only understand the criminal law in a critical way, we also understand it better.

Notes

1. In what follows I concentrate solely on the structure of criminal law doctrine, not because I think it alone is important, but because it is that structure which lies at the heart of the traditional criminal law course, and which has tended to be ignored in critical accounts. I will not discuss the broad variety of contextual materials which portray the ways in which the criminal law works in practice. These are extremely important to a full understanding of criminal law, but they tend to have a limited connection with the core legal principles which are at its heart.

2. There is no space to elaborate the historical material here, but it is important to understand that modem criminal law systems were a product of the period of the bourgeois Enlightenment, and are thoroughly marked in their basic assumptions by this origin. Foucault's book (1979) was the first modern work to recognise the significance of the individualist form of penal theory in this period, a form that remains critical to criminal law today.

3. Compare the views expressed by Lord Hailsham in DPP v. Morgan [1976] AC 182 and R. v. Lowe [1987] 1 All ER 771, and by Lord Edmund Davies in Abbott v. R [1977] AC 755, R v. Caldwell [1982] AC 341, and DPP v. Majewski [1977] AC 443.

4. Dobinson had helped the deceased and so had in one sense 'undertaken' acts of kindness. She had not, however, given an 'undertaking' so to act. Dobinson would paradoxically have escaped liability had she more callously done nothing at all to assist the deceased.