Two Approaches to Criminal Justice Theory

The normative approach is primarily associated with modern liberal political theory in its various guises. From modern retributivism drawing on classical Enlightenment statements by Kant and Hegel, through to utilitarian and more broadly consequentialist positions, and onto communitarian, preventive (Ashworth and Zedner Reference Ashworth and Zedner2014) and political (Chiao Reference Chiao2018) variants, there is significant diversity of standpoint. Yet this is diversity within a recognisable and self-contained field, where it is possible to identify a range of well-known ‘moves’. Modern political theory dictates the parameters. Its concern boils down to justifying state or sovereign practices around crime and punishment and relating these to the idea of responsible citizens or subjects who get what they deserve. These are normative questions about what ought to happen in a relationship between persons and political authority. How and why ought ‘we’ to punish offenders? The whole material is woven around questions of political normativity and what is normatively justified in sovereign–subject relations. It would be as impossible to deny the thoroughness and energy invested in this ‘oughtification’ of the penal field as it would the continuity of the questions asked. These concern generally the nature and value of punishment in a way that suggests that, whatever solution is proposed, the basic unquestionability of this practice is maintained. A ‘definitional stop’ argument supports this, claiming that since criminal justice is necessarily a state function, it is impossible to avoid the validity of a political theory approach. Other approaches may be more or less interesting but are optional to the main business.

That implies however that thinking about the state and criminal justice involves giving primacy to one method over others, that of political theory. What would happen if it turned out that the questions posed were the wrong ones, or that they could be answered in a very different way? In opposition to the standard normative models, critical approaches consider questions of punishment to be of a different order. Though hegemonic, liberal political theory is a relatively recent phenomenon developing from the seventeenth century. Packaged as Whig philosophy, as the outcome of an enlightened and timeless process, critics argue per contra that criminal justice is emergent under particular social, political and cultural conditions which fundamentally shape its practice (Ramsay Reference Ramsay2009; Norrie Reference Norrie2014, Reference Norrie2017b; Farmer Reference Farmer2016; Lacey Reference Lacey2016; Carvalho Reference Carvalho2017). The normative approach obscures social functions and interests which criminal justice’s forms reflect in often contradictory ways. Legal practices do not lack contestable political goals which they also obscure. The legal form of responsibility, based on the abstraction of individuals from their social context, covers up social injustice. If these underlying functions changed, it could be that many assumptions about what is normatively compelling are wrong. There is a challenge to the oughtification project here: issues of normative political principle should be seen as both historically produced and flawed, as partisan rather than universal. Political normativity justifies the unjustifiable and should be submitted to a critical historical analysis which reveals the underlying truth and untruth.

In this debate, the politically normative and the critically social-theoretical and historical bounce off each other without finding a way forward. They generally compete by speaking past each other. Yet criticisms levelled at normative theory and the need for alternatives have become more salient in recent times. Its high-minded language of punishment and responsibility legitimates profound injustice concerning crime linked to social, racial and gendered disparities. Against claims that criminal justice delivers justice – even potentially, or only in principle, historical changes in advanced capitalist societies reveal increasingly the underlying systemic or structural violence that underpins it. Authoritarian political (‘law and order’) developments which accompany social and economic degradation sharpen the problem by exacerbating conflict. Social movements born from the experience of criminal justice failures register and protest the outcomes. Liberal criminal justice theory is charged with complicity and hypocrisy. These changes render normative political theory more vulnerable to the claim that the world it imagined is past, if it were ever present, in societies marked by class, misogyny, racism and their colonial history. The unquestioning affirmation of liberal norms begins to look impotent, a matter of diminishing returns, in a political world bent on their denial. There is a breach in the status quo critics would wish to face, but how and with what end in sight?

Beyond Impasse: Abolition and Moral Psychology

The critical view is that criminal justice is in social, political and legal disarray and in need of change. Society is in upheaval and political systems do not provide justice to the poor, minorities or women. Instead, they defend existing systems leading to the repetition of problems and failed solutions. One such case in point concerns the prison, where, from a critical standpoint, abolition is in the air. Normative theorists respond by distancing themselves from actual outcomes with ‘in principle’ or ‘better the devil you know’ arguments, but this is at best a partial defence when criminal justice systems are on a downward slide to ‘more of the same’, or worse, with less resource. Yet critique is hard-pressed to say what should replace the present and the past. Liberal theorists ask fairly, what do you think ought to happen? ‘Abolition’ of the criminal justice system seems a rallying cry for a very different future across the board, but it invites questions about what it means and what happens after abolition. Critics, it should be noted, also find it hard to reject entirely the language of responsibility and penal justice, wishing to see the powerful (the police, men assaulting women) arraigned before courts to get their ‘just deserts’. Social organisation ‘from below’ in communities of the dispossessed is seen as providing alternative forms of social control. This may indeed provide sightings of genuine alternatives to criminal justice, but it has its own dangers and, indeed, needs its own moral understanding of how it should operate both on the small scale and were it to be developed generally. Abolition looks like a radical call for change, but it needs to be examined more thoroughly, especially in theoretical terms, if it is both to be understood and to stand as a defensible position in a time of political flux.

In the standoff between political normativists reconfiguring the status quo and critics imagining very different futures, I propose a further position from which to examine the problem. My own past work has been on the side of critical theory and for social and legal change (e.g. Norrie Reference Norrie2000, Reference Norrie2014), but more is needed and possible. Maintaining these older commitments, I suggest a critical step-change to find the way forward, through the different means of moral psychology. Such an approach has something to say about moral questions and the criminal justice field for it sets human ethical being (the ‘animal that thinks and loves’) at the heart of what ought to be done. Yet it does not lose sight of either the social problems that generate crime or the historical critique of law and its forms. It suggests that underneath these we also need a different way of thinking about how human beings live together and deal with each other. It recognises the importance of dealing with the ways humans violate each other through a moral language of violation, but it declines to think of this in the standard terms of criminal justice. An alternative approach points beyond the limits of political theory, criminal justice thinking and penal institutions to how humans could address wrongdoing in ways that are open to individual and social change. This offers the possibility we could find means to abolish criminal justice ‘from within’, at least in the sense that we develop a different and better understanding of what criminal justice claims to do but does badly. We can use a moral psychological critique of criminal justice’s own moral psychology to think about how to move beyond it.

These are big issues and I hope to deal with them in ways that are sufficiently complex to capture what is most deeply at stake. However, it may be possible to state the issues simply to help us proceed. At the bottom, I want to raise and provide answers to five questions: (1) what is wrong with existing criminal justice concepts and practices? (2) what is the nature of the human agency and suffering to which they relate, and relate badly? (3) why do we remain stuck with what we have? (4) what could make things better for all concerned? and (5) given where we are, how do we relate critically to existing criminal justice practices? These questions, to which I return in what follows in exploring different kinds of critique, lie at the core of the argument I shall develop in this chapter and the book as a whole.

Against the ‘Morality System’

Williams was a moral philosopher who wrote of the ‘morality system’ as what he called a ‘peculiar institution’. This work chimes with a critique of law in two ways. First, it views modern liberal philosophy as a strange or ‘peculiar’ way of looking at moral issues.Footnote ⁴ Second, it opens the door to thinking about a different approach to modern ethics through moral psychology. This ground-breaking work has generally been bypassed by criminal justice theorists, save where it could be fitted into mainstream assumptions.Footnote ⁵ Avoiding it was made easier by the fact that Williams did not develop his ideas, sometimes only gesturing at them. Nonetheless, they provide an initial bridge to a new direction of travel.

In Ethics and the Limits of Philosophy (Reference Williams2011), Williams described what he called ‘Morality’ as ‘The Peculiar Institution’, by which he meant ‘a special system, a particular variety of ethical thought’ (Williams Reference Williams2011: 193). His target was the idea of moral obligation, which he linked substantively to blame and guilt, and philosophically to Kant; more broadly, Williams saw these ideas as ‘part of the outlook of almost all of us’ in modern liberal society (Williams Reference Williams2011: 194). People were trapped by a way of thinking which had the effect of securing social order, but which made people subservient to moral command and obligation in a way that involved illusion, fiction and myth. It gave the ‘morality system’ power to control people by laying stress on the idea that they ought to act in certain ways. When they did, they were responsible because they acted ‘voluntarily’. This was an ‘official’ moral concept supporting the state but was too general and crude to explain how people in fact reflect ethically on their lives. The idea of voluntary moral obligation appeared to describe human powers, but in reality it decontextualised human actions. It was entirely helpful to the state and legal order, but it was disempowering for ordinary, human ethical experience. It lined us up as abstract agents submitted to state and social control. Williams wondered whether the morality system, being essentially fictional, ‘could survive a clear understanding of how it works’ (Williams Reference Williams2011: 215) and thought ‘we would be better off without’ it (Williams Reference Williams2011: 192).

The Morality System and Criminal Justice

The morality system qua peculiar institution is at play in normative criminal justice theory. In Shame and Necessity (Reference Williams1993), Williams developed his critique of modern ethics especially in the form of guilt and blame. He looked at how such ideas were historically shaped and different among the Greeks and the moderns. He showed how moral language had been conditioned by historical and political forms rather than by disinterested philosophy. He distinguished proper ethical enquiry from its political expression, arguing that modern normative theory distorted ethics in favour of politics. The following quote makes the point:

He also wrote in an appendix to Shame and Necessity of ‘guilt-centred, autonomous, moralities’ in which ‘guilt is pictured as an emotion experienced in the face of an abstraction, the moral law, which has become part of the subject himself’. This generates an ‘idealised picture’ in which ‘guilt comes to be represented simply as the attitude of respect for an abstract law, and it then no longer has any special connection with victims’ (Williams Reference Williams1993: 219–22). Note here the concern about abstraction in punishment theory, and the wish to speak in a different mode about the experience of victims. Of course, the modern political theory of punishment pushes in different directions – towards communitarianism, Aristotle, Hegel or consequentialism – and not just what might be thought to be Williams’s Kantian target here. But his aim was not just at broadening political theory. It was to take our understanding of punishment’s terms to a deeper level, one in which we could understand in human, naturalistic, not merely normative, terms the psychological as well as the moral experience of guilt or being a victim. Modern normative philosophy around issues of guilt and responsibility was political ventriloquy, a philosophical trahison des clercs. Williams’s argument is severely deflationary for liberal criminal justice theory, emphasising its historical, political, non-ethical and fictional nature.

Criminal justice thinking reflects and legitimates state practices,Footnote ⁶ but this leaves two questions. The first concerns what the idea of a deeper, naturalistic basis for guilt means. This needs considerable development, which it receives below but also throughout this book and especially as we develop the account of guilt in Part III. The second question concerns how we understand the ethics in legal practices of blame, guilt and responsibility. Are these only the expression of historical and political standpoints, so that they might be abandoned (as Williams appeared to suggest in Ethics and the Limits of Philosophy), or might they be reconfigured (as he appeared to suggest in Shame and Necessity)? Take the idea of ‘the voluntary’. If it is over-emphasised and misrepresented by a peculiar morality, should it be discarded or should it be reworked to do better or even radically different, ethical work? If the latter, how should we take it so as not just to revise the present concept, and how would such a radically reworked concept relate to history and politics, the nature of the state and its law? Williams had no ready answers to these questions. He wrote that it would be better to do without morality as this peculiar institution, but he also wrote that there was a ‘much larger question of what needs to be, and what can be, restructured in the light of a reflective and nonmythical understanding of our ethical practices’ (Williams Reference Williams2011: 215). What looks initially like a shut-out reveals something more complicated, a quest to understand how human ethical experience, falsely shaped by the peculiar morality system, might be different.

If this is so, however, it raises a third question. If we could develop a deeper understanding of our moral concepts away from the peculiarities of the morality system, how should this relate to what we have now with its links to state and law? Would it imply their abolition, and, alternatively, if abolition proved presently impossible, how would an ethical practice based on human moral psychology relate to one based on law? Such questions are entailed by Williams’s challenge to think through a moral psychology grounded in human nature rather than political artifice. They occupy us in this book and Williams did not provide ready answers. We should begin, however, by sketching out a general position in moral psychology before pursuing it in a particular case.

Linking Different Levels

First and briefly, there is a general point about moving from a primitive individual drive and emotion like fear and anger to something more complex, social and ethical, like justified self-anger or self-recrimination (guilt), as in the above quote. It is not apparent from Williams how this occurs. How the forming of the more complex ethical idea operates is clearly important, but what does ‘bootstrapping’ mean? It looks like a metaphor in place of an explanation.Footnote ⁷ The work needed to be done on how moral emotions emerge from psychological ground states is addressed in the next section.

Identifying Different Underlying Forces

This leads, second, to a substantive point in the same quote, concerning what is linked with what when we connect primitive drives or emotions to complex elements in moral psychology. Williams’s observation here is that fear and anger underlie guilt and recrimination. This argument will be something I explore later (in Part III on the psychology of guilt). I believe Williams identifies a valid link, but one that misses the main point in how human psychology develops. The complex of emotions around fear, anger, recrimination and guilt is certainly important to the human mind, and also in criminal justice settings. Fear and anger, we might say, stalk the penal system’s practices as these emotions are directed at offenders as a means of control. Criminal justice means to make people feel fearful and bad about themselves, and no doubt often succeeds. Guilt works through anger and fear in citizens who have broken the law, but there is more to human psychology than this. Perhaps the following (somewhat isolated) quote indicates Williams knew this. As before, he builds a moral psychology from basic drives and emotions, but here he finds a different source for internalised moral recrimination:

Williams’s claim here that recrimination and guilt may stem from the basic drive and emotion of love contrasts remarkably with his earlier claim about fear and anger. Two very different moral psychologies jostle with each other here. Importantly, this seems to me also to be true in criminal justice systems. There are ways in which these seek to impose fear, anger and guilt on people who pass through the system and experience these emotions. There are also however people who must deal with self-generated anguish and guilt about having violated another. Many prisoners feel this with regard to serious crimes, even if prisons do not help them deal with it and encourage its denial. They too engage with the criminal justice system, and I think we get nearer to their emotions through the basic human experience of loving identification with another. Should we then build our moral psychology of blame, guilt and recrimination out of fear and anger or out of a basic motivation of love?

Note that this gives rise to a further question. If two different motivations with different kinds of psychological outcomes are possible, how can we accommodate such opposing positions in our analysis? These are fundamental questions of moral psychology to be explored for themselves and their implications in this book. My point here is to note the basic psychological mechanisms Williams links to moral experience and the different kinds of drives and emotions that these open. These need to be explored if moral psychology in a criminal justice setting is to tell.

The Individual and the Social

The third thing to note anticipates an objection that will come from sociologically minded critics of the criminal justice system. It is that any argument from moral psychology is reductive since it locates the problems of criminal justice at the level of the individual. This however would involve misunderstanding. Williams does not seek to read moral psychology simply in individual terms, and nor do I. He relates developing human emotions to broader social settings. His focus in Shame and Necessity is on the development of a ‘concrete ethical life’ which includes interaction between individual psychology and social context. The Greeks emphasised shame over guilt because of the nature of social relations in ancient Greek society. Moral psychology does involve individual ethical reactions but not in a reductive, individualised account of ethical life. It locates ethical reactions in individuals, but they always exist in and develop out of social settings. Moral psychology sits between different levels in the building of human being: biology (the basic human drives), psychology (how those drives become shaped and articulated in human minds) and society (how social life interacts with and informs human capacities for mental life). The psychological level in human being is always both individually located and socially developed albeit in minds which possess their own sui generis powers. The animal that thinks and loves is inherently a social animal.

We might say that love, fear, anger and guilt are propensities in the human mind arising from basic drives, but how these are expressed in the individual psyche also depends on the social world in which the mind develops. For example, a world in which conflict, exploitation and repression are prominent is likely to be one that lacks kindness in its interactions and relies on fear, anger and self-hate for social control. Conversely, a society that is in its essence consensual and harmonious will encourage relationships that are at their core based on love and mutual respect. The human psyche, grounded in basic drives, accommodates both and develops in different ways as it reacts to the social world about it.

To sum up, the passages quoted earlier about fear, anger and love encapsulate Williams’s direction towards moral psychology: the avoidance of the peculiar morality system involving abstract ethical obligation, the identification of grounds of ethical experience in human psychology and the development of such psychology to social settings which generate concrete ethical life. The references to fear at anger or love as the basic emotion that ‘bootstraps’ into a moral reaction suggest how a moral psychology might commence, though we need to know what bootstrapping means. The reference to love might seem counter-intuitive with regard to criminal justice, but I shall argue that Williams’s brief observation will be vindicated. Developed ethical and psychological emotion includes guilt and blame, but also, I shall argue, forgiveness and other emotions relevant to violation. Love is crucial here but both fear and anger as well as love are important to the moral psychology of individuals in social contexts and thus to the criminal justice system. However, the two basic emotions are very different in their implications and how they sit in the human mind. They inform ethical judgment in very different ways. Of the two, love is the more developmentally important, but we cannot avoid fear and anger as much as we should want to (see below, Chapter 8).

Williams’s Naturalism

What did Williams mean in claiming that moral psychology should be ‘naturalistic’? Naturalism is sometimes associated with a strongly reductionist tendency to explain all life in terms of physical mechanisms in nature, but this is not what is involved in developing a naturalistic moral psychology. Such a psychology involves explaining how it is possible for human beings ‘to live under rules and values and to shape their behaviour in some degree to social expectations’ (Williams Reference Williams2002: 24). Societies vary according to time and place as to what they require of people but living under rules, as Williams has it, involves living in ethical systems according to ‘a certain psychology’ (Williams Reference Williams2002: 24). Living in ethical systems presupposes a particular psychological capacity, and a naturalistic approach involves understanding the relationship between that capacity and other psychological dimensions of human beings which make the specifically moral dimension possible. Accordingly, ‘the naturalist question about ethics will emerge as the question of how closely the motivations and practices of the ethical are related to other aspects of human psychology’ in the context of ‘the rest of human nature’ (Williams Reference Williams2002: 26).

These comments from 2002 distinguish naturalistic psychology from reductionisms which deny the importance of moral psychological agency, but they may encourage another reduction, of moral psychological life to the life of a liberal political order. ‘Living under rules’ sounds uncomfortably close to the peculiar morality against which Williams had earlier railed. Nonetheless, they do affirm the need to take naturalistic human psychology seriously. What might this mean in practice? In the last section, we saw that Williams identified basic human drives or emotions as the grounds on which guilt and blame develop, and this approach reflected a psychoanalytical understanding of the mind. A strong case has been made by Jonathan Lear that the moral psychology Williams put to work in Shame and Necessity opens moral philosophy’s door to psychoanalysis (Lear Reference Lear2003, Reference Lear2004) by linking it to the idea of natural drives and the building of emotional identities in the human psyche. The root of a human being (its ontology – a term explained in what follows) lies in how an animal species with basic drives and developed organic brain-based capacities can develop an advanced psychological level of being through social relationships. This is the underdeveloped basis for Williams’s naturalistic moral psychology,Footnote ⁸ and I see it as the starting point for a theoretical critique of criminal justice. Before continuing, however, I want to develop and defend more fully the naturalist position.

Naturalism in the Human Sciences

This takes me to Roy Bhaskar’s critical realist account of philosophical naturalism in the social sciences (Bhaskar Reference Bhaskar1979). Bhaskar’s aim was to address the differences between the natural and the social sciences. The latter may be seen as qualitatively different from the former because they deal with meaning and interpretation rather than the explanation of cause and effect. Only the natural sciences operate with a conception of ‘natural necessity’. Bhaskar’s argument was that it was essential that social sciences acknowledge the centrality of both conscious and unconscious intentions and motives to human agency in explanations of social life. Human meaning, reasons and actions are irreducible to social conditions or causes and integral to social reproduction or change, so the social sciences differ from the natural sciences. This does not however mean one cannot speak of a naturalistic social science, only that naturalism in the social sciences is more complex than in the natural sciences. Reason and meaning represent central features in human life and are the medium through which causation operates. Reasons can be causes so that human meaning is essential to explaining how natural necessity works in the social sciences.

This is crucial for understanding moral psychology’s naturalism. Any suitably developed naturalistic account in the social sciences must acknowledge the significance of human meaning and agency and therefore must seek to understand how such agency is possible in social and psychological terms. Bhaskar argued for a series of emergent levels or strata in the constitution of human life from the physical, chemical and biological to the psychological and sociological. Each level is dependent on the lower level for its possibility but emerges from it with its own powers and potentials. These can only exist at the higher constitutive level. Thus, mind is emergent from embodied matter, requires such matter in order to exist, enjoys a range of psychic capacities only possible at its own level and requires social interaction so that its capacities may be developed and exercised. Linked to the different ontological strata of human being is the need for a range of sciences to explore them. Different sciences must address explanation at the physical and chemical levels of human being, as well as at physiological, psychological and sociological levels to explain how human life operates at higher levels. We also need such sciences to understand how these different levels interconnect to produce individual and social outcomes, generating the need for interdisciplinarity in our studies and explanations.

A naturalistic moral psychology must accordingly be able to make sense of the psychological level in human social life as the level at which meaning, emotion and other psychological features exist. That level is emergent from the biological drives given to humans and is related to the social and cultural relations which activate its possibilities. Explaining human agency thus involves two things. It involves first understanding how this level of the psyche is related to the biological level out of which it is emergent and to the social level with which it interacts in complex ways (Lear Reference Lear1990; Norrie Reference Norrie2020). Second, and explored in this book, it involves identifying how a sui generis level of moral psychology links to general capacities at the psychological level in a science of the psyche.

Naturalism and Human Psychology

This sketch of how we should explore and explain human being in naturalistic terms then takes us from a general philosophical naturalism to the kind of specifically psychological naturalism found in the work of Freud and his metapsychology. Here my debt is to Freud and to writers broadly linked to the ‘object relations’ approach. Writers like Jessica Benjamin, Melanie Klein, Jonathan Lear, Hans Loewald and Donald Winnicott appear at different points, though the sources for my main argument in Part III are Loewald and Klein. In Love and Its Place in Nature (Reference Lear1990), Lear shows how Sigmund Freud translates biological drives into psychological states with their own emergent properties. Mind develops out of matter in a process whereby ‘the flesh becomes word’ (Lear Reference Lear1990: xii). The title of his book indicates two things. The first is that human psychology in Freud’s understanding is rooted in a naturalistic process which sees human psychic motivations as emergent from natural biological processes to which they are irreducible. This kind of psychological approach aligns with Bhaskar’s critical realist approach and is well-placed to explain Williams’s reflection on how moral psychology should be built up from basic motivations like love or anger and fear (Norrie Reference Norrie2020).

Second, this work is important substantively because it depicts love as at the core of human nature. Lear argues that love, also referred to by Freud as libido, Eros and the life instinct, was the key to his metapsychology. Drawing on Loewald, Lear offers a bridge between moral philosophy and psychology constructed out of love. Love in Freud is ‘a basic developmental force in nature’ (Lear Reference Lear1990: 12) which drives the human psyche as it develops capacities for a range of emotions and rational capacities. In this book, I link this to Jessica Benjamin’s The Bonds of Love (Reference Benjamin1988), her feminist psychoanalytical account of the developing mother–child relation and the possibility of autonomous and responsible personhood emerging from a loving relation. Returning to Williams, we saw that he suggests love may underlie the analysis of blame and guilt (recrimination). To those I would add the whole gamut of psychological states associated with situations in which one person has wronged, harmed or violated another: grief, responsibility (in a psychological sense), forgiveness, mourning, denial and freedom. Humans are capable of possessing these developed moral emotions because their emotional lives have evolved out of strong basic emotions formed from libido or love. Becoming a person with moral emotions emerges from processes of social interaction with parents and others by means of which one becomes ‘enformed’. A key psychological mechanism here is that of identification with another, from which we learn, and from which we see the other as like us, and with an important ethical connection to us. From this derives the ability to achieve a sense of responsibility and agency, and the reflexive autonomy to relate it to the contexts from which we were formed.

What though of that other strand of thought in Williams, concerning fear and anger? These too, I shall argue, are present in Freud’s naturalist account of human emotions, and I shall link what he says to Melanie Klein’s account of love and anger in infanthood as another important basis on which to build a naturalistic account of moral psychology. It will turn out to be important to understand the relationship between fear and anger on the one hand and love on the other in a developing moral psychology in which love proves the basis for mature emotional reactions while anger plays an often negative role as an early or primitive reaction which we cannot always escape. Regrettably, I shall argue that modern criminal justice systems permit significantly greater importance to primitive than to mature moral emotions. Indeed, the argument of this book will be that a reversal of this prioritisation provides a different vision of what we now call criminal justice might entail.

Naturalistic Moral Psychology as Human Ontology

To tie these elements together, one way of unifying a philosophical account of naturalism with a naturalist moral psychology is through the idea of human ontology (being) as involving a natural kind. The human species has much in common with other animal species but also differs. Williams suggests that the significant difference between humans and other animals is they are capable of ‘non-genetic learning’, though this seems too broad. Other animals learn by way of cognitive process and experience too. Nonetheless, as he says, ‘[e]very species has an ethological description’ (Williams Reference Williams2002: 23), and we could say that key features in the human species being would include psychological powers that are cognitive, intellectual, reflexive, emotional and moral. An element central to human experience, certainly in relation to violation, but also more generally, would be the ability to think metaphysically about the human condition. This is Donald MacKinnon’s ‘need to speak about the transcendent, about the human spirit and the infinite’ (Mac Cumhaill and Wiseman Reference Mac Cumhaill and Wiseman2022: 91) mentioned earlier.Footnote ⁹ Such a need reflects all the other psychological powers and is a key element in being a metaphysical animal, one that can think and love. It does not however come alone, but as part of a package of potentials that stem from our animal nature.

However ultimately described, these powers make the human species a natural kind. They give it a specific ontology. Human powers are specific to humans, existing differently in them compared to other species. Powers for psychological growth in human babies exist as potentials which may or may not be exercised but exist differently when compared to the powers and potentials of other species. They stem from our biology and are channelled through our genetic capacity into our social animality as beings capable of thought and love. Human ontology involves the latent capacity to generate psychological out of biological life, and as part of that, ethical life. It does this in social and cultural settings which ‘bring out’ the potential of each human individual to be a powerful particular. Of course, social and cultural settings vary in their ability to enable this to happen, but each human infant represents its own ‘generative mechanism’ capable with the aid of other human beings of developing a complex moral psychology and acting on it.

This idea of the specific ontology of human being as a natural kind with specific generative powers that are psychological provides the foundation on which to develop a naturalistic moral psychology built on basic human emotions like love (and anger/fear) and leading to complex and differentiated ethical outcomes.Footnote ¹⁰ This is the psychological ontology of the animal that thinks and loves. But how does this ontological foundation for a naturalistic moral psychology relate to criminal justice? It does so by way of critique, to which I now turn.

Six Kinds of Critique

Ontological critique is initially part of a group of six (eventually seven) kinds of critique relevant to legal and philosophical enquiry. I begin by setting these out and showing where the specifically ontological sits in the range of critiques. (1) An internal critique takes principles identified as existing in the legal field and applies them to that field. (2) A reconstructive critique is dissatisfied with existing principles, finding them to be inadequately identified or developed. It reconstructs such principles as the basis for reforming the field. Broadly speaking, internal and reconstructive critiques draw upon concepts or practices immanent to the field, but the idea of (3) an immanent critique per se involves more, identifying elements perhaps systematically obscured or blocked in the existing field. Such elements may be suppressed and when identified may disclose deep-seated contradictions constitutive of the field. These are emergent from theory and/or practice and may be unseen by participants. They may involve a theory/practice split. Immanent critique is associated with finding something which undermines the existing claims and pretensions of the field, calling into question the possibility of internal and reconstructive critiques. Things are not as they seem. What was thought to be inevitable and taken for granted as such is not necessarily so. Uncovering what was missed, immanent critique identifies important new aspects of the object under study.

Immanent critique in this strong sense abuts (4) ontological critique. What has been shown to be hidden in the field now constitutes a part of it, and this deepens our understanding of the thing under investigation. Immanent critique develops by disclosing a more complex sense of an object’s being, that is, its ontology. Next, there is (5) explanatory critique, which develops the findings of immanent and ontological critique to identify the reasons why important things about the object under study were systematically missed. This may be because, for example, there was a social, political or psychological interest in seeing things one way rather than another. Conceptions of ideology in Marxism and phantasy in psychoanalysis are relevant to this. We have here a logical chain of critiques. Something important that has been missed and exposed (immanent critique) is revealed as a further truth about the object under investigation (ontological critique) and it is possible to explain why it was missed (explanatory critique). Following these, there is then the possibility of (6) emancipatory critique, which takes what has been discovered as hidden and important in the sequence of immanent–ontological–explanatory critiques, frees up our understanding of what is at stake and seeks to show how the world could be changed by enacting what was systematically or structurally suppressed. These critiques thus combine to form an immanent–ontological–explanatory–emancipatory axis in critical activity. They operate in sequence by breaking free from and moving beyond the more simple internal-reconstructive approach, which stays with what is given.

Williams’s Critique

Six different critiques (with a seventh promised) may seem a challenge, but in fact these play out in Williams’s account of the peculiar morality in a straightforward way. Williams was an ambivalent theorist, but at his boldest he was not interested in an internal or reconstructive critique, at least if the latter stays with or tries to renew the existing materials.Footnote ¹¹ His work is more squarely in the other kinds of critique: there is something missing and deeply wrong with how morality is formulated, and the search is to find out why this might be. This involves analysing systematic defects in a particular kind of community. He is also interested, as we have seen, in what really underlies issues of moral recrimination (fear and anger, love), thus taking him into moral psychology. The method is essentially based on immanent detection and ontological exploration. An explanation is then to be found both in the workings of the modern liberal state and its moral grammar of voluntariness and in an underlying human nature which needs to be explored. Humankind would be freer (emancipated) without the ‘peculiar’ moral system and if a naturalist moral psychology was given fuller rein. I do not claim that Williams saw or developed his work significantly in these terms, but this sequence of critiques (immanent–ontological–explanatory–emancipatory) is implicit in his work on moral psychology in the late 1980s and early 1990s.

Critique and Criminal Justice

The sequence of critiques in Williams’s work helpfully introduces what a critical project around criminal justice might entail. I will be working with the immanent–ontological–emancipatory–explanatory critical axis described here. Relating different critiques to the normative and historical modes of thinking about criminal justice discussed earlier, the liberal, normatively assertive, oughtificatory approach follows the routes of internal and reconstructive critique. It looks for principles that it finds are present in legal practice and seeks to rationalise these or develop them better to formulate principles and understanding of the criminal justice field. On the other hand, those who develop a critical historical method are interested in forms of immanent and explanatory critique. They look for patterns of systematic failure in legal thinking and the normative political approach which seeks to rationalise it. They question its ability to see how the law really operates, finding contradictions which are otherwise explained away. They then seek historical explanations as to how these forms of law evolved and why they are maintained. My own earlier work largely follows this pattern (Norrie Reference Norrie1991, Reference Norrie2000, 2014) of immanent and explanatory critique. Now, I wish to complete the critical project by filling out the ontological and emancipatory implications of the earlier critique. I do this by developing a naturalistic moral psychology of the kind gestured at by Williams to set against criminal justice theory and practice.

Here is a simplified illustration. In the orthodox normative view, we have a model of the responsible subject who is entitled to be blamed and punished for freely willed violations of law. We have a range of normative concepts in both philosophy (e.g. retributive or rights-based accounts of punishment) and more strictly legal theory (e.g. the requirements for mens rea and actus reus, a guilty mind and act) which rest on this premise. As Williams suggested, they are all broadly related to the idea of what it means to be a voluntary, and therefore blameworthy, agent. Immanent critique picks apart the existing model of the responsible subject and the wrong done and finds it wanting and contradictory. Ontological critique suggests that there is a truer account in moral psychology of how humans may feel when they violate or are violated by another. Against the moral grammar of law, an alternative moral language stemming from naturalistic moral psychology is developed. This is the basis for exploring and explaining why false, ideological or phantastic (‘peculiar’) forms of thinking and practice dominate the field (explanatory critique). It is also the basis for identifying different and better ways of dealing with people in situations of violation, as either victims or perpetrators, and this is an emancipatory critique for such people and for society as a whole.

Ethically Real/Institutionally Critical (‘ERIC’)

We are almost but not quite done. There is a seventh critique which stems from the previously discussed ‘immanent-ontological-explanatory-emancipatory’ axis, which I shall call (7) institutional critique. The aim is to use the development of a naturalistic moral psychology in actual institutional settings to provide a standpoint from which one can assess what legal and philosophical principles reflected in institutions achieve in practice. Of course, actually existing criminal justice institutions deal with human beings so they have some relationship to the psychology of mind and action, but a fuller understanding of human moral psychology may reveal how criminal justice theory and practice fail because it excludes elements of that psychology (hence Williams’s sense of its ‘peculiarity’). The stage is set by ontological critique (what humans and their moral psychology are like) for an institutional critique of actually existing legal and moral forms.

An ontology adequate to the critique of legal institutions will do two things. First, it will establish its (ontological) basis in naturalistic moral psychology, generating a moral language adequate to the experience of people who inflict or suffer violation. Second, it will relate this to how existing institutional legal forms operate in social settings. Combining these, it will produce an understanding of the legal and moral institutional field that brings together the ethically real (because based on a naturalistic account of human ontology and moral psychology) and the institutionally critical (because showing the limits of existing legal and moral forms and what lies beyond them). This Ethically Real/Institutionally Critical approach provides a useful summary acronym (ERIC) that I will use in various parts of the book to speak about this seventh important critique. An ERIC critique represents the point of purchase between an understanding of what is and what could be.

In this section, I have identified seven kinds of critique. The focus has been on looking at how these are reflected in the standard normative and historical approaches, and, in developing the latter, to bring out the full potential of critique. In drawing these seven forms out, I can now identify the two sides of my approach in this work: to be ethically realistic (through an ontological critique based on moral psychology) and institutionally critical (relating ontological to institutional critique). To do so also involves drawing on immanent and explanatory methods and emancipatory themes. The sequence of critiques in the critical approach may seem daunting but could be summarised more simply by relating it to the five brief questions introduced earlier in the chapter: (1) What is wrong with existing criminal justice concepts and practices? This involves an immanent critique. (2) What is the nature of the human agency, suffering and violation to which they relate, and relate badly? This involves an ontological critique. (3) Why do we remain stuck with what we have? This takes us to an explanatory critique. (4) What could make things better for all concerned? This involves an emancipatory critique. (5) Given where we are, how do we relate critically to actually existing criminal justice practices? This involves an institutional in-the-light-of an ontological and ethical (an ERIC) critique.

Good and Evil

The route involved Arendt’s claim about the ‘banality of evil’, that evil under the Nazis had an everyday, accepted quality which rendered it banal. The Nazis, she said, felt they did no wrong. That evil could be described as banal is of course controversial, and subject to misunderstanding, but the controversy seems to hide a prior question. What did Arendt mean not by ‘banality’ but by ‘evil’?

If we wish to understand evil, we should couple it with a discussion of its opposite, good. When I was thinking about Arendt, two cases had just made their way through the English criminal justice system dealing with mothers involved in the mercy killing of their children.Footnote ¹² I initially examined these cases in terms of the law’s discomfort at deploying mens rea terms like intention to establish culpability. The cases varied in detail and outcome but these mothers had both claimed to act with the intention to kill while possessing a good, even admirable motive for their actions. Law’s abstract, formal morality expressed in mens rea terms struggled to address situations where an actor’s intention was clear but her motive was said to be good. This was a situation where law’s ‘peculiar’ morality in Williams’s terms, its ‘morality of form’ of intention and voluntariness in my own (Norrie Reference Norrie2000, Reference Norrie2014), collided with a parent’s loving commitment to do best by their child. The outcome in Kay Gilderdale’s case in particular depended not on stating and applying the law but on judge and jury taking positions against it. Law indicated conviction but the judge bridled and the jury refused to convict. Both relied on an underlying moral judgment that the defendant had acted from an essentially good motive whatever the law of intention said. The analysis focused on a tension between legal form and moral substance in legal practice (Norrie Reference Norrie, Duff, Farmer, Marshall, Renzo and Tadros2011, Reference Norrie2017c: ch 5), but it raised a question: what was meant by ‘good’ in such a case?

Underlying Good and Evil

How can the cases of Kay Gilderdale and Adolf Eichmann be compared? In moral terms, they are starkly different, yet they raise a similar question: what do the opposed substantive terms good and evil mean? It is tempting to think such concepts represent raw ethical primitives open only to subjective assessment, or that they disclose dogmatic religious commitments. They seemed to me however to lead to a deeper legal enquiry than we usually pursue. From the point of view of ethical experience, I began to think what such categories might say about human being. Behind discussions of good and evil, one could find ethical values relating to real human powers concerning freedom, solidarity and flourishing (Norrie 2016, Reference Norrie2017c: ch 8). Possibilities for human freedom and flourishing are of course identified as goods by many philosophers. Solidarity involves the good of commitment to another even at serious cost to oneself. In Gilderdale’s case, both judge and jury took the view that hers was an essentially good act in loving solidarity with her daughter’s tragic wish to end her life. What lay behind the good act was that the mother had acted out of love, loving identification or loving solidarity, with her daughter. With a sense of real loss and serious legal risk to herself, the mother’s good act had come from a sense of loving commitment. It was this expression of human love that the law’s formal categories struggled to address.

What of evil? Mercy killing from genuine loving commitment is the longest possible way from Nazi genocide, yet there is an underlying ontological continuity. The former embodies the highest forms of human freedom, flourishing and solidarity by acting out of love or loving identification. The latter involving the concentration and death camp attacks the most basic forms of freedom and solidarity. The camp inmate is stripped of all respect. The slaughter of children in front of their parents is the denial of the very possibility of loving identification. Behind the evil act lies the complete negation of love, care and solidarity with another. Here, loving identification with another is again at stake, but this time by its most complete repudiation (Norrie 2016, Reference Norrie2017c: ch 8).

Looking at these very different cases concerning good and evil, love began to seem like the elemental key to human moral being, the plausible object to be investigated as the ground on which ethical categories are built.Footnote ¹³ Thinking this way spurred me to explore those psychoanalytic writers Jessica Benjamin and Jonathan Lear, mentioned earlier, who had written of the central role of love in human development. Of course, the love of a mother for her child is a specific form of love, and it might not be obvious how this should be related to conduct in other relationships. Nonetheless, here is a form of love which suggests an indication of its general significance. When I began to explore the moral psychology of violation, as in Chapter 5, dealing with The Forgiveness Project, I found that it was often the mothers of children who had been killed who spoke most clearly about how love related to violation. However, all I am doing for now is explaining my route into love; how I followed it is the work of this book.