Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey’s “Jurisprudence, History, and the Institutional Quality of Law”

Article — Volume 101, Issue 4

101 Va. L. Rev. 947
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Nicola Lacey presents a subtle and searching inquiry into the relationship between history and legal theory. The final portion of her article, with which I shall engage, criticizes the scholarship on criminal responsibility for being too concerned with “its conceptual contours and moral foundations,” “rather than with what it is for[:] its social roles, meaning, and functions.” Lacey then states, “I will argue that we cannot understand what responsibility is, or has been, unless we also ask what it has been ‘for’ at different times and in different places.”

Lacey offers an account of criminal responsibility in the context of the institutions that existed, the ideas the people had, and the interests that the criminal law was to serve. This article is part of her more general research agenda that can be thought to contain the following claims: Criminal responsibility is a concept grounded in the practice of law. It is a social, institutional, functional practice, and the outcome of this practice—the usage of the label of “responsibility”—is the appropriate object of inquiry. Moreover, because this object of study is grounded in a practice, and that practice has changed over time, our understanding of criminal law’s concept of responsibility has shifted over time. It simply makes no sense to Lacey to think about fine-grained accounts of mental states as fixed constants as if that idea was instantiated in the practice of criminal law before people even thought about culpability that way or before they had the institutional mechanisms to realize such ideas. To her, responsibility is not a “constant through time and space,” as such an approach is “in some deep sense . . . antithetical to the very enterprise of historical scholarship.”

Here is what she is arguing against. There are theorists, myself included, who think of questions of responsibility in philosophical terms. These moral truths are not socially or historically contingent; they are constant questions to which we seek answers. My work abstracts away from the fact that most cases are resolved by plea bargain (very much part of the practice of criminal law) and certainly from the mechanisms by which insanity could be assessed in the 1800s (which is part of the history of responsibility findings).

In some ways, this is a (boring) methodological debate. What I care about as responsibility is not what she cares about as responsibility. However, I take Lacey to be placing pressure on the philosophical approach in two ways. First, there is the implicit claim that it is altogether odd to claim to be looking at criminal law if one does not care about law. As she states, “Normative criminal law theory purports, after all, to have some grounding in the reality of criminal law: to offer an account of the implicit normative structure of an actually existing social practice.” And, second, there is the concern that one cannot make important contributions to the real world if one’s work is not grounded in the real world.

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  Volume 101 / Issue 4  

Jurisprudence and (Its) History

By Charles Barzun and Dan Priel
101 Va. L. Rev. 849

Jurisprudence, the Sociable Science

By Gerald J. Postema
101 Va. L. Rev. 869

Time-Mindedness and Jurisprudence: A Commentary on Postema’s “Jurisprudence, the Sociable Science”

By David Luban
101 Va. L. Rev. 903

Jurisprudence, History, and the Institutional Quality of Law

By Nicola Lacey
101 Va. L. Rev. 919