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This essay sets out from Duff’s Punishment, Communication and Community (2001), and poses the question of whether it is possible to pursue the goal of a criminal law which realizes the values and represents the interests of a ‘liberal community’ in a world of radical value pluralism. I shall examine this question by means of a case study: that of the cultural defence. Over the last twenty years, advocates of the cultural defence have argued that normative considerations of political morality dictate that differences in experience and world-view should modify the way in which criminal law is applied, potentially adjusting the standard applied to individuals. How convincing, I ask, is this argument? Can it be reconciled with Duff’s liberal communitarian vision of criminal justice? And, to the extent that it cannot be so reconciled, does this undermine the case for the cultural defence, or rather necessitate a revision of Duff’s argument?

This is the text of the 2010 Shirley Smith Address delivered by Nicola Lacey on 8 December 2010, organised by the Wellington Women in Law Committee. The lecture offers an analysis of why New Zealand has attached itself to increasingly punitive criminal justice policies over the last 25 years, and considers in particular how far this has to do with the shape of New Zealand’s political system.

In this paper, I further develop the diagnosis of a revival of character in contemporary criminal law. First, I offer a more differentiated conceptual framework for identifying and analysing the waxing and waning influence of character in criminal law. In doing so I set out, deliberately, from a broad definition of character as a pattern or practice of responsibility-attribution which is premised in whole or in part on an evaluation or estimation of the quality of the defendant’s (manifested or assumed) disposition as distinct from his or her conduct. Second, drawing on this broad model of character, I aim to demonstrate in greater detail the variety of ways in which contemporary criminal law is marked by a resurgence of character, paying particular attention to the ways in which this resurgence both resembles and differs from the reliance on character typical of pre-modern or 18th Century criminal justice, and realises itself with particular force within certain areas of criminalization. The broad model of character serves to illuminate family relationships between a range of ostensibly varied phenomena. In particular, by including within my purview the notions of not only bad character as constitutive of guilt but also bad character as probative of guilt, I am able to explore the ways in which, in the practical context of criminal justice, the recognition of the latter may shade into a practice closer to the former. In other words, I argue that criminal conviction, understood within prevailing conventions of communication, is coming more frequently to imply a judgment of criminal character. The upshot of this analysis is that the doctrinal arrangements of substantive criminal law, though not without importance, are in themselves rather rarely determinative of whether a character- or a capacity- approach to criminal responsibility prevails. Hence, third, I sketch an extra-doctrinal explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility: one which finds the roots of the ideology of responsibility which shapes the criminal law in broad practices of criminalization, themselves influenced by a broader political, economic and social context. Finally, I draw some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which locates its interpretation of criminal responsibility primarily within a conceptual analysis of legal doctrine in isolation from an analysis of the context of the criminal process, the rules of criminal procedure, the substantive scope of criminal law, and patterns of criminalization and punishment more generally.

This paper contributes to the use of the novel as an interpretive resource in legal and social history. It focuses on an issue which appears to have been neglected amid the rich skeins of recent debate. Particularly in relation to criminal defence, from the debate in the run-up to the advent of general legal representation in the Prisoners’ Counsel Act 1836 through to James Fitzjames Stephen’s interventions in defence of lawyers in the 1850s and 1860s, the ethical standards of advocacy and of legal representation more generally were a salient preoccupation of the novel, as of contemporary public debate in newspapers and reviews. Given the significant expansion of the legal profession, and the gradual changes in its organisation, this was hardly surprising. But amid the illuminating interpretation of this mutual engagement between (the overlapping categories of) novelists, journalists, essayists and lawyers, little has been done by way of contextualising this debate within the development of the professions, and of professionalism more generally, in 19th century Britain. As I shall try to show, an understanding of the struggle to come to terms with the extraordinary — yet incomplete — rise of professionalism, both in and beyond law, can be helpful in explaining the form which literary representations of law took, and the fact that certain kinds of lawyer and of legal practice were singled out for particular literary attention and indeed opprobrium. In asking how attitudes to professionalisation affected the literary treatment of law, and what the developing treatment of legal themes in the novel can tell us about contemporary understandings of professionalism and of what justified and legitimated it, I will focus in particular on the novels of Anthony Trollope, while drawing examples and analogies from the work of other authors.

In this essay, I address recent attempts to understand the relevance of broadly political forces and institutions in shaping the practice and the social meaning of punishment. I focus on an argument about the relevance of the political which has been especially influential in the punishment and society field during the last decade. This is the argument that political systems can usefully be characterised as broadly liberal or neoliberal, or as social democratic: and that the decline or attenuation of social democracy, and the concomitant rise of (neo)liberalism has been associated with an intensification of penality. I call this the ‘neoliberal penality thesis’ I set out what I take to be the key arguments for that thesis, before presenting a critical analysis of the utility of such a broad conceptualisation of political systems.