From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm

(2013) Oxford Journal of Legal Studies (Forthcoming)

Oxford Legal Studies Research Paper No. 53/2012

Posted: 13 Sep 2012 Last revised: 23 Nov 2012

Nicola Lacey

London School of Economics - Law Department

Hanna Pickard

University of Oxford - Faculty of Philosophy

Date Written: September 12, 2012

Abstract

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.

Keywords: blame, desert, justice, agency, punishment, rehabilitation, responsibility, treatment

Suggested Citation

Lacey, Nicola and Pickard, Hanna, From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm (September 12, 2012). (2013) Oxford Journal of Legal Studies (Forthcoming); Oxford Legal Studies Research Paper No. 53/2012. Available at SSRN: https://ssrn.com/abstract=2145250 or http://dx.doi.org/10.2139/ssrn.2145250

Nicola Lacey

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Hanna Pickard (Contact Author)

University of Oxford - Faculty of Philosophy ( email )

10 Merton Street
Oxford OX1 4JJ
United Kingdom

Paper statistics

Abstract Views
693