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Perhaps more than any other area of criminal law, the imputation of responsibility for intoxicated offending has been subject to and evolved with changes in social and cultural attitudes, advances in medicine and psychology, and shifts in the principles and aims of punishment. The result has been a technically complex and often contradictory set of prescriptions that specify what counts as intoxication, when an intoxicated person may be held criminally responsible for an alleged offence (and on what basis), and how to measure the degree and extent of their responsibility. This chapter analyses the law of intoxicated offending as a site for exploring the boundaries of, and exceptions to, principles comprising the ‘General Part’ in both common law (with a focus on the United States and England and Wales) and civil law (with a focus on Germany and Switzerland) systems.
This chapter makes the methodological case for my study of criminal responsibility. It proceeds from the conviction that space and time are crucial to a deep understanding of criminal responsibility principles and practices. This chapter introduces the socio-historical methodological approach I adopt in this book and accounts for my timeframe, the spatial and temporal scope of my study. As I discuss, my focus is on the development of criminal responsibility over the twentieth century in the context of Australian criminal laws, a delimited frame centred on a new set of jurisdictions which enables me to develop a located or grounded analysis of criminal responsibility.
This chapter takes up the story of the development of criminal responsibility in Australian criminal laws in the last decades of the twentieth century. At this point, a number of currents running through the century – including modernisation, codification and the coherence of Australian criminal laws – which are discussed in preceding chapters of this book, come together. This period represents the high-water mark of faith in the value and feasibility of organising criminal law around criminal responsibility, as legal and other changes occurring on the national and international levels were met with an attempt to fix criminal responsibility principles at the heart of Australian criminal law. As I show in this chapter, in this period, criminal responsibility became key to the self-definition of the criminal law, and the language of criminal responsibility became the language of the criminal law.
As I show in this chapter, the broader developments in interpersonal and intersubjective relations that have taken place over the twentieth century have impacted on the way in which criminal responsibility organises relations of responsibility between individuals. I make two main arguments in this chapter. First, I argue that consorting laws fall into two generations. The first generation of laws, which appeared around the turn of the twentieth century, had a distinctive orientation, mode (which denotes the way in which criminal responsibility is expressed) and form. The second main argument made in this chapter is that these generations of consorting laws correspond to different relations of responsibility between individuals or ‘others’.
This chapter picks up the historical story in the middle of the twentieth century. Against a background of an enhanced sense of independence and confidence of people and institutions that developed following World War I and World War II, I argue that it was in the middle of the twentieth century, from the 1930s to 1960s, that Australian criminal law came into its own – measured in terms of an orientation around national coordinates, and in the self-confidence of its practitioners and academics. I demonstrate that, with close reference to the decisions of English courts, and commentaries such as that of Glanville Williams – and, increasingly over the period, to US developments like the Model Penal Code – Australian lawyers and commentators came to forge an independent path for the criminal law in the mid-century. Working over and above developments that occurred within state jurisdictions, and across code and common law modes of criminal law, practitioners and scholars were thoroughly engaged in a global debate about the development and improvement of the law of crime, and in a complex and subtle negotiation between what Australia shared with others, and what might be thought mark it out. In the mid-century, it became possible to think about Australian criminal law as such, to conceptualise Australian criminal law as a meaningful idea.
This chapter offers a rethinking of criminal responsibilty. What makes criminal responsibility significant, I argue, is that it organises key sets of relations as relations of responsibility. These sets of relations are those between self, others and the state. It is this hitherto overlooked aspect that demands a new account of its significance. This chapter has two main parts. In the first part, I assess existing criminal responsibility scholarship. In the second part of the chapter, I develop my new account of the role of criminal responsibility, focusing on each of the nodes of my tripartite schema of relations of responsibility. Each node of my schema is closely connected to the others, but, as I discuss below, at different points in this book, I foreground either self, others or the state in my analysis.
Through my analysis of women’s responsibility for crime, in this chapter, I engage with this unitary story of criminal responsibility from two perspectives and make two main arguments. First, I argue that, on the level of legal form, women’s responsibility for crime is marked by particularity and specificity, rather than generality and universalism, making women’s responsibility for crime distinctive. This particularity and specificity has been the product of two dynamics, relating to violence by women, and violence against women. In the first of the dynamics giving rise to the distinctiveness of women’s responsibility for crime, which was dominant up to the mid-century century, violence by women was pathologised and women’s responsibility for crime was constructed as diminished or circumscribed. In the second dynamic, which has been dominant since the last decades of the twentieth century, the rise to prominence of violence against women – in particular, domestic or family violence – has recast women’s violence as responsive – by which I mean comprehensible only by reference to what has already happened – and reconstructed women’s responsibility as an amalgam of agency and victimhood/survivorhood. Each of these dynamics has generated atypical responsibility forms which do not fit the unitary story of criminal responsibility.
This chapter provides the third and final investigation into relations of responsibility. As I show in this chapter, the position and function of the state in relations of responsibility is dynamic, reflecting changing social and political norms regarding the role of the state. I argue that there are four historic positions of the state in relations of responsibility, which are prominent at different points across the twentieth century and first years of the twenty-first century. In these relations of responsibility, the position of the state is less or more prominent, and its function is less or more elaborate – restricted to condemnation and prosecution, extending to prevention and deterrence, and to more elaborate functions concerning reconciliation with the past, preservation of the state and active strategies to avoid recurrence in the future. Each of these historic positions of the state posits a particular relation to individual responsibility for crime, revealing the ways in which criminal responsibility is distributed between individuals and the state and showing that such a division is dynamic.
This chapter introduces the topic of criminal responsibility and explains its two dimensions - as the basis on which individuals are called to account for criminal conduct, and the form or structure of the criminal law – criminal responsibility is now central to the criminal law. The chapter also outlines the historical and theoretical axes across which the arguments advanced in the book and provides a summary of the original contribution it makes. Finally, the chapter gives an overview of the structure of the book.