In Search of Criminal Responsibility: Ideas, Interests and
Institutions (Oxford University Press, 2016)
What
makes someone responsible for a crime and therefore liable
to punishment under the criminal law? Modern lawyers will
quickly and easily point to the criminal law's requirement
of concurrent actus reus and mens rea,
doctrines of the criminal law which ensure that someone will
only be found criminally responsible if they have committed
criminal conduct while possessing capacities of
understanding, awareness, and self-control at the time of
offense. Any notion of criminal responsibility based on the
character of the offender, meaning an implication of
criminality based on reputation or the assumed disposition
of the person, would seem to today's criminal lawyer a relic
of the 18th Century. In this volume, Nicola Lacey
demonstrates that the practice of character-based patterns
of attribution was not laid to rest in 18th Century criminal
law, but is alive and well in contemporary English criminal
responsibility-attribution.
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Women, Crime and Character: From Moll Flanders to Tess of the
d'Urbervilles (Oxford University Press 2008) (The Clarendon Law
Lectures)
In
the early 18th Century, Daniel Defoe found it natural to
write a novel whose heroine was a sexually adventurous,
socially marginal property offender. Only half a century
later, this would have been next to unthinkable. Lacey
explores the disappearance of Moll, and her supercession in
the annals of literary female offenders by heroines like
Tess, serving as a metaphor for fundamental changes in ideas
of selfhood, gender and social order in 18th and 19th
Century England. Drawing on law, literature, philosophy and
social history, she argues that these broad changes
underpinned a radical shift in mechanisms of
responsibility-attribution, with decisive implications for
the criminalisation of women.
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click here for an article in LSE Research & Expertise
click here for an article in the Dangerous Women Project
The Prisoners' Dilemma Political Economy and Punishment in Contemporary
Democracies (CUP 2008) (The Hamlyn Lectures)
Over the last two decades, and in the wake of increases in
recorded crime and other social changes, British criminal justice policy has
become increasingly politicised as an index of governments’ competence. New and
worrying developments, such as the inexorable rise of the US prison population
and the rising force of penal severity, seem unstoppable in the face of popular
anxiety about crime. But is this inevitable? Nicola Lacey argues that harsh
‘penal populism’ is not the inevitable fate of all contemporary democracies.
Notwithstanding a degree of convergence, globalisation has left many of the key
institutional differences between national systems intact, and these help to
explain the striking differences in the capacity for penal tolerance in
otherwise relatively similar societies. Only by understanding the institutional
preconditions for a tolerant criminal justice system can we think clearly about
the possible options for reform within particular systems.
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A Life of HLA Hart: The Nightmare and the Noble Dream (OUP
2004) (Winner of the RSA’s Swiney Prize 2004 and shortlisted for the
James Tait Black Prize for Biography and for the British Academy
Book Prize.)
An intellectual and psychological biography of the famous legal
philosopher, HLA Hart. Winner of the RSA’s Swiney Prize 2004 and shortlisted for
the James Tait Black Prize for Biography and for the British Academy Book Prize.
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Regulating Law edited by Christine Parker, Colin Scott,
Nicola Lacey and John Braithwaite (edited collection including
introduction co-authored with the other editors) (OUP 2004)
A collaborative project across ANU RegNet and LSE: socio-legal
essays developing the methodology of Hugh Collins’
Regulating Contracts across a range of common law
fields.
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Reconstructing Criminal Law (3rd Edition) Nicola Lacey, Celia
Wells, Oliver Quick (Law in Context Series, 1990; second
edition with Celia Wells, Butterworths 1998; third edition with
Celia Wells and Oliver Quick, Cambridge University Press 2003.)
Reconstructing Criminal Law provides a radical and stimulating
alternative to the standard black letter criminal law text. The authors analyse
central aspects of criminal law in the context of the assumptions surrounding
it, and employ a number of critical approaches, including a feminist perspective
to give insights into the current state of the law. A comprehensive resource -
it contains extracts that cover a wide range of materials from historical,
political, sociological and philosophical sources and discusses offences
considered to be at the margins of criminal law. It also offers an important
practical element whereby students and teachers can attempt to answer the
questions that the criminal justice system confronts on a daily basis.
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Unspeakable subjects : Feminist Essays in Legal and Social Theory
(Hart Publishing, 1998)
Nicola Lacey’s book presents a feminist critique of law based
on an analysis of the ways in which the very structure or method of modern law
is gendered. All of the essays in the book therefore engage at some level with
the question of whether there are things of a general nature to be said about
what might be called the sex or gender of law. Ranging across fields including
criminal law, public law and anti-discrimination law, the essays examine the
conceptual framework of modern legal practices: the legal conception of the
subject as an individual; the concepts of equality, freedom, justice and rights;
and the legal construction of public and private realms and of the relations
between individual, state and community. They also reflect upon the deployment
of law as a means of furthering feminist ethical and political values. At a more
general level, the essays contemplate the relationship between feminist and
other critical approaches to legal theory; the relationship between the ideas
underlying feminist legal theory and those informing contemporary developments
in social and political theory; and the nature of the relationship between
feminist legal theories and feminist legal politics.
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The Politics of Community: A Feminist
Analysis of the Liberal-Communitarian Debate, Nicola
Lacey, Elizabeth Frazer (Harvester Wheatsheaf/University
of Toronto Press, 1993)
State Punishment: Political Principles and Community Values
(Routledge, 1988)
Criminal Justice: A Reader, Oxford University Press
1994 (edited collection: original introduction, pp. 1-36)
‘Socializing the Subject of Criminal Law: Criminal
Responsibility and the Purposes of Criminalization’ (2016) 99 (3) Marquette
Law Review 541-57
'Gamblers and Gentlefolk: Money, Law and Status in Trollope’s
England'
LSE Law Society and Economy Working Paper Series, 03-2016
This paper examines the range of very different conceptions of
money and its legal and social significance in the novels of Anthony Trollope,
considering what they can tell us about the rapidly changing economic, political
and social world of mid Victorian England. It concentrates in particular on
Orley Farm (1862) — the novel most directly concerned with law among Trollope's
formidable output — and The Way We Live Now (1875) — the novel most directly
concerned with the use and abuse of money in the early world of financial
capitalism. The paper sets the scene by sketching the main critiques of money in
the history of the novel. Drawing on a range of literary examples, it notes that
these critiques significantly predate the development of industrial let alone
financial capitalism. Probably the deepest source of ambivalence about money in
the novel has to do with 'commodification'. As this concern unfolds in Trollope,
it tells us a great deal about changing conceptions of property in a world in
which industrial capitalism sat alongside practices of speculative investment
geared simply to the multiplication of money. Trollope's nostalgia for the world
of land sits alongside an increasingly sharp critique of the power of money, and
these novels illuminate the rapidly changing economic, political and social
world of mid Victorian England. They also speak, as it were, volumes on the
relative effectiveness of the different regulatory resources which can be
brought to bear upon each form of wealth. And they open some fascinating windows
on the gendering of both money and law as concepts in the later Victorian
imagination.
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'The metaphor of proportionality' Journal of Law and
Society (2016) 43 (1) pp.27-44
'Responsibility without Consciousness' Oxford
Journal of Legal Studies (2015)
This paper addresses the relationship between responsibility
and consciousness, in the light of both H.L.A. Hart’s and subsequent
philosophical analysis. First, is consciousness necessary to
responsibility-attribution? If so, how demanding a requirement is this? And does
it make sense to pose these questions in the abstract? Second, when we move from
the realm of moral argumentation to that of law, are there additional factors –
institutional, functional, practical or otherwise – which alter the weight or
implications of the argument? Third, conversely, what can moral philosophers
learn from the way in which the issue of consciousness is dealt with in legal
mechanisms of responsibility-attribution? The paper concludes that, in both law
and morality, the conditions of responsibility are standards which are
constructed and deployed within particular social practices and institutions for
certain purposes. Hence the dominant issues underlying questions ostensibly
about consciousness are evaluative questions about appropriate standards in
particular contexts, in the light of the social functions and meaning of
criminalisation; of a finding of responsibility in civil law; or of moral
responsibility-attribution.
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(with David Soskice) ‘Crime, punishment and segregation in
the United States: The paradox of local democracy’ Punishment & Society
2015, Vol. 17(4) 454-481
Patterns of crime and punishment in the USA greatly magnify
corresponding developments in other liberal market economies – Australia,
Canada, New Zealand and the UK – faced with similar broad macro-technological
transformations, namely the collapse of Fordism in the 1970s and 1980s and the
development of knowledge economies in the 1990s and 2000s. In this article, we
set out the case for seeing these differences as largely the product of dynamics
shaped by the institutional structure of the US political system. We focus on
the exceptional direct and indirect role of local democracy in key policy areas
including law and order and beyond that in residential zoning, in public
education and in incorporation of suburbs, which has no parallel in the other
Anglo-Saxon polities, and which magnifies through residential and educational
segregation and concentrated poverty the social problems caused by
socio-economic developments.
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See also
A short video for the US Centre on US Criminal Justice [LSE]
[YouTube]
‘Jurisprudence, History, and the Institutional Quality of
Law’, 101 Virginia Law Review (2015) 919-45
After setting out some of the key ways in which the
intellectual lines of history and jurisprudence intersect, this paper approaches
the question of whether, and why, ‘history deserves a more central place in
jurisprudential thinking’ in terms of a broad understanding of law as having a
fundamental institutional dimension, as well as being a product of social power
and interests. Since law realises itself in terms of intersecting institutional
arrangements, and since these change over time, institutional history is central
to the very idea of law which jurisprudence aspires to illuminate. Moreover the
history of institutions is fundamental not only to positive jurisprudence but
also to normative jurisprudence: historically specific understandings of law and
legality structure the conditions of existence for the realisation of moral or
political ideals in and of law.
(with Hanna Pickard) ‘To Blame or to Forgive? Reconciling
Punishment and Forgiveness in Criminal Justice’ Oxford Journal of
Legal Studies
(2015)
What do you do when faced with wrongdoing—do you blame or do you forgive? Especially when confronted with offences that lie on the more severe end of the spectrum and cause terrible psychological or physical trauma or death, nothing can feel more natural than blame. Indeed, in the UK and the USA, increasingly vehement and righteous public expressions of blame and calls for vengeance have become commonplace; correspondingly, contemporary penal philosophy has witnessed a resurgence of the retributive tradition, in the modern form usually known as the ‘justice’ model. On the other hand, people can and routinely do forgive others, even in cases of severe crime. Evolutionary psychologists argue that both vengeance and forgiveness are universal human adaptations that have evolved as alternative responses to exploitation, and, crucially, strategies for reducing risk of re-offending. We are naturally endowed with both capacities: to blame and retaliate, or to forgive and seek to repair relations. Which should we choose? Drawing on evolutionary psychology, we offer an account of forgiveness and argue that the choice to blame, and not to forgive, is inconsistent with the political values of a broadly liberal society and can be instrumentally counter-productive to reducing the risk of future re-offending. We then sketch the shape of penal philosophy and criminal justice policy and practice with forgiveness in place as a guiding ideal.
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(with Hanna Pickard) ‘The Chimera of Proportionality:
Institutionalising Limits on Punishment in Contemporary Social and Political
Systems’ Modern Law Review (2015) 78(2) pp.216-240
Examines proportionality as a central concept in the revival of retributivism, or "just deserts", as a punishment theory. Challenges claims that punishment is limited by proportionality.
Book Review: Preventive Justice by
Andrew Ashworth and Lucia Zedner (Oxford University Press, 2014) British
Journal of Criminology (2015)
'"Legal education as training for hierarchy" revisited' Transnational Legal Theory (2014) 5 (4), pp.596-600
Reflects on how Duncan Kennedy's 1982 essay "Legal education and the
reproduction of hierarchy" resonated with the author's experience as a law
school teacher in the UK in the 1980s and influenced her later academic career.
Zelia Gallo, Nicola Lacey and David Soskice. 2014. 'Comparing
Serious Violent Crime in the US and England and Wales: Why It Matters, and How
It Can Be Done.' LSE Legal Studies Working Papers no. 16/2014
Comparative analysis of violent crime is hampered by a lack of reliable statistics, even between relatively similar countries, with doubts about existing studies suggesting that further comparative data is needed. Violent crime presents particular problems of variation in offence definition and recording practices. We can, however, derive reasonably valid comparative data for the US and England and Wales for the narrower category of serious violent crime. We show broadly that the incidence of serious violent crime per capita is between three and seven times as high in the US as in England and Wales. This parallels the comparative data on homicide; existing comparisons with Canada and New Zealand lend further weight to the claim that levels of serious violence in the US are distinctively high.
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‘Community, Culture and Criminalization’, in Will Kymlicka,
Claes Lernestedt and Matt Matravers (eds.) Criminal Law and Cultural
Diversity (OUP 2014) 47-66
‘The Path Not Taken: H.L.A.
Hart’s Harvard Essay on Discretion’ 127 Harvard Law Review (2013) 636-51
‘What constitutes criminal law?’, in R.A Duff, L. Farmer,
S. Marshall, M. Renzo and V. Tadros (eds.) The Constitution of the
Criminal Law (Oxford University Press 2013) pp. 12-29
‘Comparative Criminal Justice: An Institutional Approach’, (2014) 24 Duke
Journal of Comparative and International Law pp.501-527
'Justice redefined - or justice diluted?' Family Law 2014 44 (May)
pp.593-595
Comments on the analogies between the changes to legal aid across family law, criminal law and immigration law. Considers how the removal of legal aid will affect access to justice in those three areas. Discusses how the restructuring of access to justice is presented as necessary for economic reasons but suggests that the changes represent an abandonment of the welfare conception of justice.
'The rule of law and the political economy of criminalisation: An agenda for
research', Punishment and Society, October 2013 vol. 15 no. 4 pp.349-366
This article argues for an institutional approach to criminalisation
scholarship, drawing on historical and comparative methodologies, and on the
resources of several disciplines including law, sociology and political science.
It goes on to sketch the sort of research agenda which is implied by that
approach, with a view to laying the intellectual building blocks for a broad
political economy of criminalisation within modern societies committed to the
Rechsstaat/rule of law. The article describes how this framework developed out
of recent work in the apparently discrete fields of historical and of
comparative studies, of doctrinal analysis of criminal law, and of
socio-political analysis of criminal punishment in modern societies. The main
outlines of these projects are set out in the first part of the article, which
then moves on to consider how they may be brought into dialogue so as to inform
the construction of a further research agenda. This agenda, which seeks to
contribute to the building of a general understanding of the place of
criminalisation and punishment within the governance frameworks of various kinds
of social order which share a commitment to Rechtsstaat/rule of law ideals, is
sketched in the third part of the paper. In conclusion, the article argues that
such a research agenda implies an expansive conception of punishment and society
scholarship.
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With David Soskice, ‘Why are the Truly Disadvantaged American, when the UK is
Bad Enough? A political economy analysis of local autonomy in criminal justice,
education, residential zoning ‘ (2013) Law Society Economy Working Papers
no. 11
‘Institutionalising Responsibility: Implications for
Jurisprudence’ (2013) 4(1) Jurisprudence 1-19
In this paper, the author suggest that the
historical and institutional conditions of existence of the concepts
which animate legal argumentation - like the historical and
institutional conditions of existence of certain forms of law - are
of interest not only in their own right, but also because they raise
methodological issues for jurisprudence. These include questions
about the relationship between concepts and the social phenomena
which they purport to categorise; about the relationship between
philosophical and other forms of legal theory; and about how a
jurisprudence largely dominated by philosophical methods may be
brought into productive dialogue with other forms of theoretical
analysis. Only by broadening both its horizons and its methods, the
author argues, will jurisprudence be capable of illuminating not
only doctrinal analysis within particular jurisdictions at
particular times, but also comparative and historical scholarship.
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‘Humanizing the Criminal Justice Machine:
Re-Animated Justice or Frankenstein’s Monster?’ (2013) 126:5
Harvard Law Review 1299-1324 (review article)
‘Could He Forgive Her? Gender, Agency and Women’s Criminality in the
Novels of Anthony Trollope’, in Martha C. Nussbaum and Alison
Lacroix (eds.), Subversion and Sympathy: Gender, Law and the
British Novel (Oxford University Press 2013) pp. 176-204
With Hanna Pickard, ‘From the Consulting Room to the Court Room?
Taking the Clinical Model of Responsibility Without Blame into the
Legal Realm’ (2012) Oxford Journal of Legal Studies 33 (1): 1-29.
Within contemporary penal philosophy, the view that punishment
can only be justified if the offender is a moral agent
who is responsible and hence blameworthy for their offence is
one of the few areas on which a consensus prevails. In recent
literature, this precept is associated with the retributive
tradition, in the modern form of ‘just deserts’. Turning its
back on the rehabilitative ideal, this tradition forges a strong
association between the justification of punishment, the
attribution of responsible agency in relation to the offence,
and the appropriateness of blame. By contrast, effective
clinical treatment of disorders of agency employs a conceptual
framework in which ideas of responsibility and blameworthiness
are clearly separated from what we call ‘affective blame’: the
range of hostile, negative attitudes and emotions that are
typical human responses to criminal or immoral conduct. We argue
that taking this clinical model of ‘responsibility without
blame’ into the legal realm offers new possibilities.
Theoretically, it allows for the reconciliation of the idea of
‘just deserts’ with a rehabilitative ideal in penal philosophy.
Punishment can be reconceived as consequences—typically negative
but occasionally not, so long as they are serious and
appropriate to the crime and the context—imposed in response to,
by reason of, and in proportion to responsibility and
blameworthiness, but without the hard treatment and stigma
typical of affective blame. Practically, it suggests how
sentencing and punishment can better avoid affective blame and
instead further rehabilitative and related ends, while yet
serving the demands of justice.
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‘Political Systems and Criminal Justice: The Prisoners' Dilemma
After the Coalition’ Current Legal Problems 2012 65 (1)
pp.203-239.
In this article, building on an argument sketched in my
The Prisoners' Dilemma (2008), I explore the ways in
which the institutional structure of political systems
shapes the politics of criminal justice. In particular, I
set out an argument as to why coalition politics might be
thought, other things being equal, to facilitate stability
and moderation in criminal justice policy. In the second
part of the article, I examine some recent case studies in
the impact of coalition politics on criminal justice
policy-making, and show how a close analysis of the move to
proportional representation in New Zealand and Scotland, and
the unusual period of coalition government at Westminster,
refines our understanding of the ways in which institutional
arrangements such as the electoral system, the party system
and the dynamics of bargaining under conditions of coalition
government affect the environment for criminal justice
policy-making. In the final section, I engage in some
predictions about the likely fate of penal moderation under
coalition politics in England and Wales.
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‘Punishment in the Perspective of Comparative Political Economy’
(‘Bestrafung in der Perspektive der Komparativen Politischen
Ökonomie’) 44
Kriminologische Journal (2012) 9-31
‘Punishment, (Neo)Liberalism and Social Democracy’, in Jonathan
Simon and Richard Sparks (eds.) The Sage Handbook of Punishment
and Society (Sage Publishing 2012) pp. 260-280
‘Principles, Policies and Politics of Criminal Law’, in Julian
Roberts and Lucia Zedner (eds.), Principles and Values in
Criminal Law and Criminal Justice (Oxford University Press 2012)
pp. 19-35
With Lucia Zedner, ‘Legal Constructions of Crime’ in M Maguire, R
Morgan, and R Reiner, The Oxford Handbook of Criminology (5th
edn, Oxford: Oxford University Press 2012) pp.159-81.
‘The Way We Lived Then: The Legal Profession and the Nineteenth
Century Novel’, 33 Sydney Law Review (2011) 599-621
‘Community, Culture and Criminalisation’, in Crime, Punishment
and Responsibility: The Jurisprudence of Antony Duff, edited by
Rowan Cruft, Matthew H. Kramer and Mark R. Reiff, (Oxford University
Press 2011) pp. 292-310.
‘The Prisoner’s Dilemma and Political Systems: The Impact of
Proportional Representation on Criminal Justice in New Zealand’
(2011) Victoria University of Wellington Law Review 1-23
