Liberalism, Normative Expectations, and the Mechanics of Fault
In this review of Jeremy Horder's "Excusing Crime," Huigens argues that Horder's analysis of excuse in criminal law is flawed on two grounds. First, Horder approaches the excuses (which, in American terms, correspond to non-fault arguments instead of denials of responsible agency) with a normative jurisprudence that resembles and draws upon the normative jurisprudence of Dworkin and Finnis. This approach, which is prevalent in punishment theory generally, requires an adequate explanation of criminal law to be a morally defensible account of criminal law as well. The better approach is to consider the normative claims and requirements of criminal law analytically, from an internal point of view, following Hart and Raz. Second, Horder criticizes John Gardner's normative expectations account of excuse, and then elaborates it using liberal political theory. Not only are the claims of liberalism unnecessary once one abjures normative jurisprudence, Gardner's account is not improved by them. Instead, Gardner's account can be improved by refining his broadly Aristotelian approach. Two of Horder's three proposed excuses - an excuse for demands of conscience and an excuse for a hybrid defense of diminished responsibility and excuse - are examined and found wanting from this perspective.