Law, Justice & Morality II: Responsibility and Liability

Summary PPLE 2016

Vera Scholten

Week 1: Collective & Individual Responsibility

Lecture 1A
M.J. Lerner (1929) - Just world hypothesis: people tend to assumes that people get what they
deserve, and deserve what they get. The victim is blamed - satisfies a need for certainty.
Empirical vs. normative views
Normative (law/ philosophy): focus on moral significance of concepts of individuals and collective
responsibility/ liability + the appropriateness of using these concepts in specific contexts (what
should be?) Law: responsibility = liability.
Descriptive/ empirical: application of these concepts explained in terms of psychological, social or
biological factors (what is?) Psychology: responsibility explained as the outcome of psychological
dispositions/ social relations/ cultural traditions/ power structures.
→ however, disciplines are not so distinct
a. Disciplines affect each other
b. as the development of social tendencies within the distinct disciples reflect social and
cultural transformations (see Atiyah: historical accounts of responsibility)
c. with every perspective, political interests and values are at stake (normative implications of
various perspectives)
Basic features of responsibility
1. Intersubjective: always involves multiple people
2. Capacity to control: the idea that you could have acted otherwise than you actually did.
3. Standards of behavior: plausible excuses, reasonable reasons for acting in a certain way that
was out of your control or else you will be punished
Retrospective (backward-looking) vs. prospective (forward-looking, strict liability)
Historical account of the increasing capacity to control - Middle Ages to the 19th century.
A. Earlier societies: adverse events were seen as the outcome of fate/ divine order.
B. The Middle Ages: secularization, individualization & scientific progress
C. 1770-1870: individualism (free market, self-reliance)
D. 1870 onwards: time of social transformation (no harmonious order). The struggle of the
lower classes (social immobility). MORAL: collective responsible for their fate. ECON:
realization that nation’s wealth depends on the health of the entire public. POLITICS: fear for
Marxism/ communism. Result: social systems/ protective laws = collective responsibility. This
was reinforced by scientific insights regarding societal ordering (e.g. hygiene)

Atiyah – The Rise and Fall of the Freedom of Contract (1979): analysis of
transformations of contract law in the context of social changes. This chapter: about the roots of
individual responsibility.
a. Individualism as a social mechanism = form of exercising control (instead of force) (link:
Foucault). Free market, free choice enforced & regulated by the state, self-reliance/
education -> system of rewards and penalties, filled the gap of governmentality (less
personal relationships).
b. Individualism as an ideal – willingness to question evert form of authority. From
enlightenment & utilitarianism. NOTE: individualism ≠ selfishness. Influence of economic
sphere.
Individualism in the working class: beginning 19th C notion of individualism was appealing to
working class because of lack of rights, but this started to wear off during the 19th century.
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Individualism and education: education as social discipline – teaching people how to live a good and
responsible life. State funded education = paternalism + individuals (paradox) -> increased state
activity in social issues.
Individualism and Discipline: penalties for bad behaviour but freedom to misbehave again.
Individuals and self-reliance (an ideal): social structures punish relying on others – internalizing one’s
own costs becomes an inherent moral good (link: norms influenced by law/ social structures).
The competitive system of rewards and penalties: rejection of ideal of equality -> the nature of men
is to strive for maximum improvement of our own situation.
Individualism and Egalitarianism: lay claim on natural law (inherent (moral) logic that can be
universally understood). Unequal society was seen as morally just in 1870 but later on the ideal of
democracy and egalitarianism arose.
Tutorial 1A
Sociology of law: how do social changes affect law?
The pendulum of responsibility
- 19th C: articulating legal concepts that almost completely recognized individual responsibility
only.
- 20th C: rise of the welfare state and collective responsibility - guiding people’s decisions vs.
brute punishment.
- 1980’s: rise of neo-liberalism meant partial return of individual responsibility (profits
individualized, losses collectivized)
Lecture 1B
Max Weber: Conduct and Rationality
1. Goal oriented rationality: instrumental, means-end, C&B calculations, efficient.
2. Value-oriented rationality: goals based on philosophical considerations.
Rationalization through functional specialization – increased control but disenchantment.
a. Bureaucratic Administration. Specialisation of tasks (bureaucracy) creates an impersonal
system of hierarchical order. Increased governmental control (hard to bring about changes)
b. Law. Positive law (law as a product of legislation by experts) again generates impersonal
rules that might not be embedded in morality/ religion/ family ties.
c. Economics: separate economic order (capitalist enterprise unembedded in personal sphere)
all focused on rational and efficient goals.
Rationalization through instrumentalisation and discipline: rationalization entangled in institutions
of own making (iron cage). Instrumentalisation: institutions made instrumental to realize social aims
(goal orientation). It affects control (less autonomy) and affects values (less personal). Law: made
instrumental to realize social aims but is not comprehensible for the normal citizen anymore (not
transparent, loss of individual control). Only accessible for legal specialists.
To sum up: tendency towards collective control undermines individual control.

Kronman on Max Weber’s theory on modernity and rationalization.

Rationalization:
- Benefit: one can master all things (control) by calculations as it created by other humans.
- Downside: our specialized law restricts our autonomy within society = less control. People
are required to sacrifice autonomy to subordinate themselves to the machine.
Critique of Weber:
1. Weber critiques loss of individual control resulting from rationalization but also emphasizes
the idea of freedom as the standards against which all social arrangements and programmes
of reform are to be evaluated.
2. The dominance and complexity of bureaucracy (importance of specialists) also results in a
loss of control – need for experts limits autonomy. This is an impersonal and rational system
in which it is hard for individuals to change things.
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Weber’s conception of personhood: all humans are endowed with the equal power to make
deliberate and purposeful choices – no differences in moral status. Paradox: in first critique weber
concedes this but the 2nd critique, the need for a true leader (with special qualities), hints at a
difference in moral status.

More control through disenchantment: specialisation, bureaucracy

Less control through iron cage: people are entangled in institutions of their own making – discipline
and erosion of features which qualify for political leadership

Young – From Personal to Political Responsibility

Since 1980’s: poverty caused by behaviours/ attitudes of the poor themselves – no responsibility
taken (entitlement mentality).
Mead & Murray: three assumptions. Young disagrees
1. Poverty caused by a lack of personal responsibility or structural deficiencies but not both.
2. The background conditions in within which poor people act are not unjust
3. It is only the responsibility of poor people that we need to worry about
They argue the system cannot be blamed as it should be seen as benign and self-correcting.
Behaviour stems from the individual thus individuals should be held responsible. Equal opportunity
has already been achieved.
Young: people in modern societies are interdependent, structures are often unpredictable, thus
people took reciprocal care of each other. Personal responsibility means internalizing personal
consequences, Absolved form helping others – ignores the interdependence and large scale
structural processes that provide our living conditions. There is inequality. Effort should be rewarded.
The personal responsibility discourse attempts to isolate the deviant poor and render them
particularly blameworthy for their condition, which then justifies the application of paternalistic or
punitive policies to them. We cannot generalize people’s motives for acting. However, people do
behave irresponsible.
Dworkin’s theory of responsibility and luck: justice requires compensating for disadvantages derived
from circumstances outside people’s control. Young critiques that this also entails structural
injustices, not just luck of birth (personal attributes) – Dworkin mistakes the idea of social injustice
with undeserved misfortune.
Roemer’s Revision of Dworkin: people should be held responsible for whatever circumstances stem
from their control. However, hard to differentiate what is and what isn’t in our control. Roemer’s
method: divide members of society into categories based on their circumstances beyond their
control. Then compare within these categories which inequalities are unjust. Young critiques this is
an inappropriate method as it demands for social structure in theorizing social justice. The most
problematic inequalities are not between people amongst those within the same category, but
between those categories themselves.

Week 2: Introduction to Civil Liability

Narrow concept of responsibility: the capacity or ability of people to realize targets, aims, values
defined by others
Broad concept of responsibility: to define and select values

Criminal liability Civil liability

State vs. offender Victim vs. injurer
Punishment Compensation

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 Proof must be beyond reasonable doubt Preponderance of evidence: must be more likely than
not likely that the plaintiff’s assertions are accurate.

Tort law: duties and rights imposed by the law on parties when harm is involved. Its is a sub-domain
of private law.
Private law: concerns itself with relations between private citizens/ organisations. Property law and
contract law (consent of both parties) also fall under private law.
Change of tort law: now also includes public issues between unequal parties (e.g. fast food litigation)
next to the already existing concern for private issues between equal parties. Non-symmetrical
relationships.

Fault-liability: injurer is liable when his behaviour was below social standards. Intent & negligence.
Retrospective evaluation based on norms. Roots in 19th C individualism. Retributive (only when
injurer deserves to be punished) and individualistic account.
Strict liability: injurer is mechanically held liable because of his role/task. Distributes the costs of risk.
A prospective analysis which is more victim friendly. Increased significance from 20th C onwards.
Utilitarian (realizing social aims) and acknowledges collective responsibility/ interest/ welfare more.
The increased significance for strict liability can be explained by increasing specialisation/
differentiation in tasks (link: Weber), increased importance of insurances and the rise of alternative
sources of compensation.

Hage & Akkermans – Tort law remember the cellar hatch case (Coca Cola vs. client)
Functions of tort law
- Compensatory justice
- Fair and efficient distribution of damage over society (utilitarian)
- Prevention of damage
Strict liability: reasons for shifting liability to an non-responsible person
▪ Fairness: those who enjoy the benefits of a risky action should also bear the costs
▪ Efficiency: better and economically efficient distribution of costs
▪ Possibility to recover: allowing victims to recover from the events
▪ Prevention of damage: promoting behaviour that avoids unnecessary risks.
Tort law deals with the consequences of wrongful behaviour (= breach of duty of care - LHF).
Vicarious liability: e.g. employer liable for employee’s actions or a mom for her child.
Deep Pocket Theory: liability should be placed where the money is if circumstances allow for it.
Recoverable damage: material or immaterial harm to a legally protected interest (e.g. bodily/ mental
integrity, human dignity/liberty, economics interest etc.)

L. Friedman – The Security State

Thesis: tort law has evolved from the law of personal injury to the system of ‘sure and certain relief’
The emergence of modern tort law is largely due to the emergence of insurance and the welfare
system, and the spreading of risks.
19th Century: Laws of personal injury became salient during the Industrial Revolution as more and
greater injurers occurred. Law was based on strict liability (you screw up, you pay). New 19th C rules:
1. Fault principle: prove that the person was actively negligent, not just committed the act.
2. Contributory negligence: if A sued B in tort, and B could show that A had been even slightly
careless himself, there would be no recovery.’
3. Assumption of risk: when you are supposed to be aware of risks you’re treated as having
assumed the risk.
4. The Fellow-Servant Rule (1842): an employee can not sue their employer if the injury was
caused by the negligence of another employee – intangible boss.
5. Respondeat superior: an employer is responsible for acts that take place in employment.
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Proximate cause: close connection between negligence and injury is required to attribute liability.
The goal of economic growth of this time influenced legal policy immensely (utilitarian) – insurances
to spread risks. Demand for safety in the workplace which the law responded to.

20th Century: time of workmen’s compensation – fault and negligence were (nearly) eliminated as
principles in work accidents. Shift: strict liability for the employer and expansion of insurance –
compensation became the main purpose of tort litigation. Total redress: wrongdoers must assume
responsibility in a moral society. Contributory negligence makes place for comparative negligence.
Courts tried to expand the meaning of statutes and the norm of total justice arose (= catastrophes of
all sorts earn compensation for the victim). Tort developments bend to this norm and the state
adapted it → rise of the welfare state: providing a social minimum. The state is not abstract entity
but a part of society and its citizens.

Lecture 2B
Instrumentalism/ utilitarianism: the social aims of tort law
1. Compensation to victims
2. Deterrence and prevention
3. A socially desirable allocation of costs for risky activities (fair and efficient)
Increasing prevalence of strict liability because of
1. Insurances: first party (e.g. employee insurance) and third party (e.g. employer insurance).
Effect on tort law:
▪ Deep pockets results in higher claim activity
▪ Morally easier for judges/juries to compensate victims
▪ Attribution of liability becomes a collective issue (more compensation = higher
premiums for everyone)
▪ Increase in statistics means an increase in attention to situational/structural factors
▪ Rule of thumb procedures since insurances deal with cases daily
2. Alternative sources of compensation: informal assistance & social security
3. Modernization/ industrialization (Friedman):
▪ machines as causes of injury
▪ hard for judges/ juries to keep track of technological innovations
▪ accidents because of cooperative activities
Cane: rejects fault. He observes that tort law is in conflict with the fault principle as:
1. there is a discrepancy between seriousness of the fault and the severity of the sanction
2. the amount the injurer has to pay is not proportional to financial capacities
3. victims which are partly to blame may be in a better position than innocent victims
4. there are prevailing forms of collective (strict) liability (e.g. companies/defect products)
5. common sense morality does not support fault principle as we first determine who is legally
required to compensate and then consider that person morally obliged to compensate.
Normative arguments:
1. It is fair to require the injurer to pay compensation (without fault) when the risks of
accidents are calculated and deliberately accepted
2. Fault reflects a narrowing of focus (which individual is responsible) meaning that the wider
causal determinants are ignored (link: Young)

Cane – An Appraisal of the Fault Principle

Fault principle: prove that the person was actively negligent (mens rea), not just actus reus. The fault
principle is not at the center of tort law anymore:
- If fault really governed tort law, coincidences would not have such a strong impact on the
compensation one is required to pay – i.e. compensation is not
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 - Severity of the sanction is not proportional to the financial resources of the injurer
- The degree to which the victim himself is to blame for the injury, is not proportionally related
to the money they receive, which should be the case under the fault principle
Cane rejects the fault principle on the following 2 grounds:
1. To require the injurer to pay compensation when he is not at fault is sometimes ok – e.g.
when great risk is known beforehand and accepted
2. The fault principle narrows the scope of juries and judges – identifying one person as
responsible while multiple might be at fault. Cane things this is unjust. (link: Young – avoid a
blame culture)
There is a gap between objective legal fault and subjective moral fault.

Haltom & McCann – Framing Fast-Food Litigation

Large fast-food (and tobacco) companies hold a great political power because they provide jobs,
sales revenues and taxes on which the government depends. Success strategies in anti-tobacco war:
1. Bringing the long history of deception and duplicity to light
2. Focus on effects on children
3. Focus on high public costs of health care
The frame of individual responsibility hinders fast-food litigators more than tobacco litigators
because fast-food is a) not physically addictive, b) fast food’s health risks cannot be isolated, c) small
uses of fast food are not dangerous.
Study: looked at themes used in the litigation in newspaper. Common themes were individual and
corporate responsibility, but parental and governmental responsibility not so much →litigators failed
in influencing the framing in newspapers.

Week 3: Civil Liability: the Impact of Insurances, Law and

Economics on Tort Law
Lecture 3A Law and Economics
Two rationales underpinning tort law
1. Retributivism
2. Utilitarianism/ instrumentalism (tort law used as reaching social aims: a) compensation, b)
deterrence, c) efficient cost allocation). Wealth maximisation measured by willingness to pay
(easier than happiness). Law can contribute by allocating costs and benefits of specific
activities efficiently – guiding behaviour that benefits society.
The Learned Hand Formula (Posner): burden of precautions < (probability that accident occurs *
anticipated average loss) = B < P x L. → efficient cost allocation (strongest shoulders bearing largest
burdens) + optimal deterrence (internalisation of external costs of risky behaviour)
The Coase Theorem: if administrative costs are kept at zero, costs will be allocated most efficiently,
contributing to the maximization of welfare. Thus, no legal intervention wanted (high admin. cost).
However, in practice tort law proves to be more cost efficient.

Fault liability: liability assigned after an evaluation of behavior. Negligence: someone is at fault when
he/she has not taken preventive measures when the cost of these measures (B) were lower than (<)
the reduction of accident costs these measures would realize (P*L). → standard of care.
Strict liability: liability attached to roles or tasks. LH Formula used by the injurer in calculating the
cost and benefit of risky behavior → Is the cost of precautions worth more than the compensation to
be paid to the potential victims? Strict liability uses ‘due care’ and avoidance of risk-creating activities
as devices for reducing the frequency of accidents whereas fault liability only uses due care.

Administrative cost in both types of liability

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 1. Claim activity: easier for the victim to win a case so more claims = more legal procedures =
administrative costs.
2. Complexity of cases: negligence costs are more complex = more proof and procedures
required = administrative costs
3. Out of court settlements: happens more for strict liability = less administrative costs.

Impact of insurances on deterrence

Moral hazards: people who are insured are more likely to conduct risky behavior. Thus risk
prevention is rewarded with lower premiums. For victims, insurance companies have deeper
pockets, meaning there is more incentive to claim. (link: blood money).

Non-pecuniary damages: damages that cannot be expressed in a monetary value (e.g. pain/ grief).
Pro’s
1. People are willing to pay in order to avoid NPD as they reduce social wealth
2. NPD function as a remedy for slack claim activity → people can gain more from claiming and
will thus claim more which might have a positive effect on justice (punishing the guilty).
Con’s
1. High administrative costs (complex procedures)
2. Less incentives for victims to protect against injury
3. Subjective character of NPD creates uncertainty about the amount to be paid which works
negatively on the LH Formula.
4. Optimal insurance argument: since there are no markets where people are unwilling to
insure themselves against pain, people are not willing to do so, non-pecuniary damages
would be inefficient as people are not willing to pay for them. Objections to this argument
a. Not always possible to shift burden to victim – (e.g. would cause more expensive products)
b. Ignores the deterrent effect – injurers are able to pass extra NPD cost onto victim by
raising product costs (similar to insurance) = unfair
c. Victims are not only interested in receiving money – symbolic dimension

Schwitters – Non Pecuniary Damages: Financial Incentive or Symbol?

Tort law: induce deterrence, efficient cost allocation (maximizing welfare) and restorative justice.
Two reasons to obey the law: a) conformity to social norms, b) consequence calculation. Law and
Economics model is gaining prominence because
- It’s a simple model of human behaviour
- It reflects the importance of market relations.
- It suggests a remedy for the integration of a heterogenous society
Tort law = symbolic dimension + sanction dimension (incentives for desirable behaviour).
Legal economists: NPD are a tool to maximize welfare (optimal deterrence + optimal insurance)
Sociologists: NPD makes the wrongdoer recognize his fault and compensates the victim (moral).
Schwitters argues the economic account of tort law dehumanizes the relationship between the
injurer and the victim (enforcers of a risk reduction policy). Humans can injure as much as they are
willing to pay for. If institutions are based on law and economics, our morals and normative basis of
compliance with the law may change. Normative and financial incentives cannot coexist. A tort
system based on economic rationale does not take the symbolic dimension of compensation into
account. Commodification should be minimized/ not seen as a simple transaction.

Posner – The Learned Hand Formula for Determining Liability

Qualifications of the LH Formula
1. The relevant costs of accident avoidance are only the marginal costs
2. It assumes risk neutrality i.e. 100% * €10 = 50% * €20.
Strict liability vs. negligence rule: which is more efficient?
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 - Negligence standard is more desirable from economic POV as
b. Number of accidents under both is the same→ assuming that the injurer acting
under the strict liability will not incur the costs of accident avoidance if they exceed
the expected costs. But,
c. strict liability would incur more claims = more admin. cost.
- But, different ways of accident avoidance need to be considered
a. Improving the care with which one conducts risky activity
b. Reducing the frequency of that activity
Strict liability considers both whereas negligence only looks at the first. Therefore, strict
liability might lead to fewer accidents but more claims.
Principle of contributory negligence should be introduced: in cases where the cost of avoiding he
accident is lower for a victim than an injurer, the victim has to bear the burden.
Optimum liability rule: minimizing B + P*L and admin. cost.
However, no conclusion on which one is more efficient.

Tutorial 3A Indiana Harbour Belt Case

There may be a case for negligence but ACC is not strictly liable for shipping hazardous material as
a. The leak was not caused by inherent properties of acrylonitrile.
b. The danger of spill is negligible if the tank car is carefully maintained
c. The dangerous activity is the transportation, not the production. But this is not hazardous
enough to file strict liability
d. Homes around the Harbour should be relocated.

Lecture 3B Is the compensation of NPD in line with an economical rationale?

First part (slides 1-7) + slides 12-15 is a summary of Schwitters text & LH Formula – see above.
Basic assumption of Law & Economics
1. Law and policy have to contribute to the maximisation of social wealth
2. Social wealth is the sum of individual preferences
3. People aim to follow their self-interest – likely to use efficient means to obtain their goals
4. People determine their conduct on the basis of cost benefit calculations
5. Law offers a set of financial incentives which induce actors to maximize social wealth
Primary objections to economic POV on tort law – plausibility
a. Is it merely self-interest that counts?
b. Are actors only driven by the calculation of costs and benefits
c. Can a stable social order be based on individual calculation? Doesn’t a calculative orientation
crowd out a normative orientation (moral duty) (link: Schwitters).
Baker: what explains the non-prevalence of collecting blood-money?
- Moral considerations
- Institutional factors: easier to settle out of court/ take insurance money
Overview week 1 & 2
1. Atiyah: rise of individualism in the 19th century
Young: growth of welfare state reflects shift to collective responsibility but from the 1980’s
individual responsibility revived
Weber: rationalization has caused more and less control – iron cage.
2. Transformations of tort law – retributivist/ individualistic (19th C) to more attention paid to
utilitarianism/ instrumentalism

Cane – Realizing Responsibility on the impact of insurances on tort law

Financial cost of legal responsibility can be spread through liability insurance (over potentially
responsible parties) or self-insurance (i.e. higher prices/ premiums for a consumer group).

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Tort law is distributive rather than corrective. Cane argues tort law should not be concerned with
prevention but only with compensation. Also, liability insurance undermines personal responsibility
through the spreading of costs. Justifications for liability insurance (Schwarz):
- It enhances the freedom of contract
- It forms a cushion against liability for bad luck/ risk of error
- Financial burden is proportionate to level of risk since premiums are risk-related
Weinrib: tort law (judge made legal doctrine/ rules + principles) vs. tort system (practical operation
of tort law wit contextual factors).
Mens rea: two roles that neither require tort liability to be insurable
1. Independent function: to justify the imposition of liability
2. Ancillary function: to justify the awarding of remedies
Criminal and civil liability should be distinguished: the function tort law liability (civil) is to justify the
imposition of obligations to repair which should be insurable. But criminal negligence should not be
insurable as it undermines deterrence.

Baker- Blood Money, New Money and the Moral Economy of Tort Law
Blood money: coming directly out of defendants pockets
New money: INSERT
Personal injury litigation revolves around liability insurance. Two reasons for not going after BM
- Moral code/ unwritten union rule (=suing within insurance limits)
- Practical/ institutional reasons: complicated legal procedures – more effort + moral costs’
People do go after blood money when a desire for retribution is involved. Also, some money is less
bloody (e.g. taking from rich people). Pursuing personal assets can be appropriate when the
defendant failed to purchase adequate insurance → individual responsibility
To sum up: moral + practical factors influence tort settlement behaviour. Blood vs. insurance money
are two different settlement currencies (different moral value). Tort law in action is not a simpler
form of tort law in the books.

Michael J. Sandel – video on utilitarianism

Bentham: the highest principle of morality is to maximise the general welfare/ collective happiness/
utility. Taking account of the idea that we are governed by pain and pleasure. Econ approach.
Objections: What about the value of life (e.g. Ford Pinto case). Failure to respect individual rights.

Milton Friedman – video on Ford Pinto case

Ford decided to let 200 people a year die in car crashes caused by their cars, because the cost of the
block outweighed the value they put on human life. Is this morally wrong?
Friedman: someone has to pay. This is the best overall situation. As a company you have to put a
price on human life, otherwise nothing would be produced. Draw the line of efficient/ safe
production somewhere. The question should not be whether Ford acted morally wrong but whether
Ford put too low of a price on human life.

Week 4: Introduction and Criminal Liability

Lecture 4A Doctrinal Aspects of Criminal Law
Criminal Law

Main aim Protecting the legal order, granting Compensation, instilling a sense of
legal protection aginst state responsibility, spreading the costs of
prosecution risky activities

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 Parties State vs. indviduals Individuals, corporations, insurance
companies (and sometimes the state)

Relation Unequal Equal

Legal protection High. There is strong role for legal Less high. Parties are considered equal
principles and an active role for the and there is a passive role for the judge
judge

Means of Punitive Mostly remedial (sometimes punitive)

enforcement

Aims of criminal law

- Protecting public and legal order
- Making individual autonomy possible
- Promoting non-violent conflict resolution between citizens
- Symbolic function: reflects society’s moral values
- Granting specific powers to and against the state = the sword (monopoly on violence) and
the shield (protect citizens against non-justified violence)

Protection offered in criminal law

Substantive criminal law: governs how members of a society are to behave
Principle of legality: no act is condidered criminal/ punishable without a previous criminal provision
in law = no retroactive application
▪ Lex scipta: it has to be written in state law, not customary law
▪ Lex certa: the law must be sufficiently clear
▪ Lex stricta: interpretation by analogy is not allowed.

Procedural criminal law: procedures for making, administering, and enforcing substantive law.
- No coercive means may be used - Necessity of proof up until beyond
except those provided for by law reasonable doubt
- Only suspects can be subject to - No hearsay evidence (in NL)
coercion - Presence of an attorney
- Presumption of innocence - Trial by jury (US)

Criminal law structure

Common law countries: bipartite
1. Actus reus: objective element of crime – the act, willed bodily movement. Includes act by
omission and a violation of the duty of care.
2. Mens rea: subjective element of crime – intent. Different definitions
a. A clear intention to commit a crime – direct intent
b. Recklessness: acceptance of the consequences of the act but not taking care to
prevent them
c. Negligence: behaving careless without intending to harm anyone/ violating duty of
care.
Civil law countries: tripartite
1. Fulfilment of offence definition (actus reus + mens rea). Mens rea distinguished
a. Intention
b. Conditional intent – conscious acceptance of risk
c. Conscious negligence – aware of risk but assuming it wont occur

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 d. Unconscious negligence – not considering risk
2. Wrongfulness
3. blameworthiness

Justifications: take away wrongness of the act (actus reus/ wrongfulness) (e.g. self-defense)
Excuses: take away the blameworthiness of the injurer (mens rea/ blameworthiness) (e.g. insanity)

Hart and the Problem of Excusing Conditions

Excusing conditions are accepted as a condition not to punish - take away mens rea which means
- moral culpability? Kant: punishment when motives are wrong. Hart: but what about crimes
that have nothing to do with morality (e.g. violating competition laws)
- sensitivity to incentives? Utilitarians: this is necessary for deterrence. Hart: that would make
punishment solely a question of effectiveness (e.g. insane people might not be sensitive to incentives)
Hart: consider law as a choosing system with a price for certain behaviour (link: LH Formula).
- Without excusing conditions people might be in constant fear
- When we do not distinguish between (in)voluntary acts, our sense of choice would
disappear.
- If you’re being punished you must have had some benefit for choosing to act riskily.
To sum up Hart: paying for the choices you make since society feels it should have a price, not
because it was morally wrong. Unless you can proof the choice was not yours (i.e. insanity/ duress)

Criminal law is about individual responsibility (Hart: choosing system, voluntary behaviour). However,
the institution of a fair judicial system is a matter of collective responsibility.

Hage & Akkermans – Criminal Law

Criminal law: a body of rules by which the state prohibits certain forms of conduct because it harms
or threatens public safety and welfare. Deals with public wrongs, state vs. defendant, severe
punishment, has a crime control function (sword) and a safeguard function (shield). Criminal law is an
instrument of social control and government power. Which conduct ought the criminal? 5 principles:
1. Minimalist principle: criminal law as a last resort
2. Individual autonomy: citizens should be free from state powers in making own choices.
3. Welfare: gives weight to collective goals and emphasizes social context needed for law.
4. Harm principle: power can only be exercised against someone’s will to prevent harm to
others (Mill). But what is harm?
5. Legal moralism: a morally wrong type of conduct is in itself sufficient to be criminal. But:
moral values are subject to change + which morals should guide the debate?
Theories of legal punishment: utilitarianism (punishment is justified when harm by individual
punishment < harm inflicted on society) & retributivism (backward looking, punishment is justified
when deserved, proportionality)
Punishing criminal attempt: prevention of crime + moral culpability (no moral difference between
attempt and achieving the desired result – mens rea)
Punishing criminal intent - Punishing thoughts?
Right to fair trial: generating public confidence in court’s work. See lecture notes for principles.

Hart – Legal Responsibility and Excuses

Reasons for limiting the scope of excusing condition: when is human control limited?
Anglo-American/ Common Law: admits crimes of strict liability.
Reason against strict liability: no room for moral culpability. No alternative for SL and MC.
Benefits of excusing conditions:
1. Maximizing individual power in predicting the likelihood of criminal law being applied to you.
2. Individual choice determining whether these sanctions shall be applied.
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 3. The pain of punishment will represent the price of the benefit obtained by breaking it.

Levenson - Good Faith Defenses: Reshaping Strict Liability Crimes

Criminal strict law doctrine contradicts most basic principles of modern criminal law (no room for
mens rea). Strict liability is efficient and provides maximum protection from certain conduct but if
left unchecked it can violate the principle of moral culpability.
Good faith defense: reinserting mens rea in strict liability cases as an element that the defendant
must disprove for acquittal. Examples: US v. Kantor case (underage porn actress) & Keating (finance)
Strict liability is mainly used for public welfare offenses (e.g. sale of alcohol to minors) and morality
offenses (e.g. rape). Opponents argue its not in line with both the retributivist and utilitarian theory:
- Retributivism: a person who is misled into breaking the law does not deserve to be punished
- Utilitarianism: over deterrence – when a person has no indication of committing a wrongful
act, he has no reason to alter his conduct.
Traditional alternatives to strict liability: reinterpreting strict liability statutes to require mens rea +
attacking actus reus + relying on prosecutorial discretion + minimal punishment.

Lecture 4B Instrumentalisation of Criminal Law

In a society under threat, the principles of criminal law are at stake. The criminal law becomes a
means to protect society in general from evil, but is the cure worse than the disease?
Why do we punish? Retributivism (price for unfair advantage) & utilitarianism (greater good)
Retributivist Utilitarian

Punishment as retribution for a crime Punishment to achieve some social outcome

committed (deterrence, prevention of vigilantism)

Backward looking Forward looking

Concern with individual act and actor Concern with the well being of society

In proportion to the crime To achieve a societally optimal balance

Kant Bentham

Rawls: particular cases call for retributivism & general/ institutional level calls for utilitarian.
The justification for a retributive sanction is in the end utilitarian. However, we cannot justify
institutions that punish innocent people on utilitarian grounds.

The conflict between the modern and classic school

Modern school Classical school

Scientifically informed Normatively formed

Eye for social conditions Centred around 'equal' treatment

Focusses on actor Focusses on act

Social welfare Proportionality

Utilitarian Retributivist

Instrumentalist Dogmatic

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 Collective responsibility Individual responsibility

Premodern punishment theories: an eye for an eye – retributivist + corporal (deterrence).

19th C: prison reform movements – individual treatment, discipline, rehabilitation. A retreat in
retributivist purpose of punishment (collective responsibility/ resocialization). New principles: see
Hage & Akkermans 5 principles (minimalist, individual autonomy, welfare, harm, legal moralism).
1980’s reform: return to individual responsibility, also in criminal law. Prominence of economic
perspective but also a high degree of moralism involved. There was an increased demand for law and
order – welfare principle starts trumping the minimalist principle. Unintended consequences:
impoverishment of lower classes, massive increase in incarceration rates and cycles of violence.
Post 9/11 instrumentalisation: war on terror has caused expansaion of police powers and
surveillance, EU and US anti-terror laws and vague statutes regarding the reversal of burden of proof.
Effects: singles out specific minorities which furthers social polarisation, increased surveillance
techniques and undermined traditional criminal law protections (legal principles).

Rawls – The Concepts of Rules defending utilitarian justification for punishment while
recognizing it can coexist with retributive justifications
Utilitarianism answers the question of why we have the institution of punishment (to promote safety
and welfare) while the retributivism explains why a specific person is punished. Legislator vs. judge.
Over-justification of punishment by utilitarianism (punishing the innocent for the benefit of society)?
Rawls: for this reason we should apply utilitarianism to the general system and take retributivism
(deserving to be punished) into account for particular cases.

Van Riezen & Roex – Counter-Terrorism in the NL and the UK

Since 9/11 there is an increased demand for severe counter-terrorism measures/ instrumentalist
policy. Two doctrines
1. Dirty hands doctrine: ethical and legal norms set aside when a person’s life is threatened.
2. Lesser evil doctrine: weighing considerations about competing ethical/ legal norms
Relationist law theory: government aiming to achieve certain goals with the instrumental function of
law. At the same time law should still restrict governmental actions to protect its citizens and
ensuring its predictability. Relationists reject dirty hand doctrine (too unpredictable). Criminal justice
should be a last resort (minimalist principle).
Instrumentalists: legal protection hampers the achievement of social goals.
Nationalist calculations vs. cosmopolitan universalism: all citizens in the world are equal.
Counter-terrorism in NL: since 1985 more instrumentalist approach (desire for increased efficiency)
Counter-terrorism in UK: history of repressive measures against IRA. After 9/11: use of nationalist
dirty hands strategy based on prevention, pursuit, protection and preparedness.

Week 5: Criminal Liability - Collective Crimes and Political

Legal Responsibility
Lecture 5A The Psychology of War Crimes
Psychology in law: as law is a mechanism of choice we must consider what influences those choices
and whether they were voluntary or not. It sheds light on motives and cognitive processes.
Reasonable person standard: used by lawyers to weigh excusing conditions. However, can we form
an objective standard from a psychological POV?

Problems with evidence

1. Evidence judging: inferences made which cannot always be justified – presumption of
innocence is fiction.
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 2. Evidence gathering: evidence is always gathered from a biased position.
▪ cognitive dissonance → belief perseverance + confirmation bias.
▪ Police officers are quite determined they can determine if people are lying.
▪ Interrogation results are unreliable as people might say anything to be released.

War crimes: Why are massacres such as My Lai hard to believe ‘at home’? avoidance of cognitive
dissonance, peer pressure and the bad apple defence (=if only a few do the unjustified killing, it
might be because they had evil inside them - abnormal people kill) War criminals are normal human
beings.
Organisational features in military training that encourage war criminal behaviour: authorisation,
routinisation, dehumanisation, trained dissolution of inhibitions, racialisation and framing as ‘military
necessity’(D&M).
What drives war crimes? Proximal pressures: intense fear, perceptual corruption, ‘bystander effect’,
sleep deprivation, sense of solidarity towards (dead) comrades, loosened moral bonds etc. These
factors lead to cognitive degradation (not being able to make judgments like normal people –
reasonable person standard) which might form a credible excusing condition.
The Psychological Dilemma (D&M): either choose lenience or impose strict liability.
Strict liability removes the need for en rea but is unattractive when people cannot change their risky
conduct. But what should we expect from a reasonable person? → signal function of law. Law should
encourage soldiers to take responsibility and now reason it away - higher standard than reasonable
person standard, however, the existence of heroes is an indication that they can be reached.
Psychology Law

Empiric Normative

Scientific Discursive

Humans as peculiar individuals Humans as generalized abstraction

Focus on the individual Focus on the legal order

Is Ought

Kelman & Hamilton – The My Lai Massacre: A Military Crime of Obedience

Sanctioned massacres: systematic mass violence carried out by military personnel while engaged in
officially sanctioned campaigns.
- The context of violence: sanctioned massacres tend to occur in a genocidal policy, designed
to destroy people defined in ethnic, national, radical, religious etc. terms.
- The target of violence: the targets have not threatened the perpetrators - defenceless.
Implications for psychological environment: devoid of conditions that provide moral justification of
violence – makes it hard to trace sanctioned massacres to a reason. It is derived from the policy
process and three social processes
1. Authorization: defined situation that absolves the individual from responsibility of making
moral choices.
2. Routinization: the action becomes so organized that there is no room for asking moral
questions.
3. Dehumanization: the actor’s attitude towards the target becomes so structured that is hard
for them to view the relationship in moral terms (as equal human beings).

Doris & Murphy – From My Lai to Abu Graib: The Moral Psychology of
Atrocity a lot of the text already discussed in the lecture
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Argument for non-responsibility: individuals in combat are typically cognitively degraded
because of the environmental factors and thus are not morally responsible. Criminal liability and
moral responsibility are detached.
Exemptions: not being able to be responsible (e.g. children/ mentally disabled)
Excuses: responsible people under circumstances that make it irrational to hold them responsible.
Normative competence: capacity of seeing ethical considerations and identifying behaviour
accordingly.
→Abu Ghraib: abuses were not part of combat operations and away from cognitive pressures of
combat. But still there were many factors similar to My Lai. Conclusion: excusing condition should
not be limited to homicidal acts and battlefield environment.

Lecture 5B Social Systems

Can a system be held responsible? The tension between the system and the individual (Young)
Durkheim: believes in a collective or common consciousness - “the sum is greater than its parts”.
Society was a social organism divided into different functions that were ideally forming a coherent
whole – working together produces good outcomes. Remember social facts from PSS.
Thatcher: there is no such thing as a society. We are individual beings with our own rationality and
capacity for autonomous choice. They band together for various reasons but do not go above the
individual – methodological individualism.
Durkheim and Thatcher are opposites. Most social theorists lie somewhere in between but nearly all
recognize the influence of systems.

“The system is responsible” - collective responsibility but implies saying something about the
individuals in that system. It might be a way of absolving individual responsibility (e.g. capitalist system
responsible for class struggle)
- Distributive: the sum of all individual responsibilities.
- Non-distributive: a residue of responsibility when singling out individuals
Options: saying that
▪ No individuals are responsible yet the collective is
▪ Some indviduals are responsible but still a residue of collective responsibility
▪ All individuals are responsible but the system/ collective is too.

The responsibility of collectives: groups do not exist apart from its members (ties, rules, shared way of
life etc.). Legal standards for groups: one meeting the standard does not mean everyone meeting it.
→ Vietnam War: racism cannot be proven as a systemic cause of violence, so system is not guilty.

Cooper: US doctrine (system) is a guilty doctrine (i.e. body count policy, chemical weapons, developing criminal
morality, bombing civilian targets) that is responsible for the moral drift of Calley and similar offenders, but
that does not excuse Calley.
Systems are pervasive but not blinding. Everywhere we are encaged in systems (link: Weber’s iron
cage) but we may still judge them since we are aware of being in such a system → possibilities for
questioning the system and for control.

Consequences of collective responsibility (of the system): hard to bring the system to trial + state
taking the state to trial is paradoxical = back to individual responsibility
WW2 & Hannah Ahrendt: “If all are guilty none are”. Moral and legal responsibility are self-centred
whereas political responsibility is world-centred. Also, she says that being part of continuous society
might make you responsible for your forefathers’ deeds (as we have profited from their work) but
not guilty for their crimes. 4 categories of responsibility:
1. Being guilty of crimes within a criminal system: direct commitment of crimes but also
delivering support (Calley & Eichman). Thoughtlessness may also be considered.
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 2. Facilitating the criminal system: responsibility for its continuance and refusing to take
political responsibility – passive support. Maybe lucky by no direct implication (e.g.Hitler voters).
3. Distancing oneself from the system: morally admirable but not politically – abstention.
4. Public opposition/ resistance: effective in large numbers – mobilisation.
Eichmann case: no evil mind (mens rea) but he did have a clear choice (Hart’s choosing system). Guilt
is an objective consequence of his deeds. Thoughtlessness.
Young: dual meaning of responsibility – responsible for crimes by not taking responsibility. One has
failed values/ standards by accepting criminal values/ standards.
Type 1 and 2: difference legal responsibility (actus reus) but not in moral responsibility.
Living in systems means adjusting our moral compass/ setting values – forward looking.

SIDE NOTE: Political responsibility by being part of a group (e.g. being Dutch) and thus you have
responsibility in what happens in that society but of course this also depends on your personal
actions. Arendt: backward looking at what our forefathers did. Young: about the now – fighting
current injustice.

Cooper – Responsibility and the System

Can a system be morally responsible for the atrocities executed in the name of that system? Cooper is
concerned with cases where no individual responsibility can be attributed, only collective.
Group: any collection of people whose actions are up for collective assessment.
Group responsibility: sum of all individual responsibilities – distributive & non-distributive (see L5B).
Only distributive collective responsibility could make sense as groups do not exist apart from their
members. Take circumstances/ background into account when assigning responsibility.
Also, if a system is evil its individuals do not have to be evil too since we condemn individuals when
they have fallen below some standard. Group standards might differ from individual standards.
But it is rational to ascribe collective non-distributive responsibility to a system if:
1. Members of a group perform undesirable acts
2. Their actions can be explained by being in accordance with the systems way of life
3. The characteristics of the group’s way of life are below standards
4. It is not necessarily the case that group members are falling below individual standards.
Nuremberg trials: accusing individual Germans when a collective might be guilty – prosecution had
to prove that the individuals were acting in accordance with the (evil) way of life.
Vietnam war: assigning responsibility to the US military system is only possible when it can be
proved that these atrocities can be explained by soldiers acting in accordance with sub-standard
practises governing the system’s way of life. Cooper suggests racism, training and conduct of war by
the US military system are part of these sub-standard practises. However, people were not killed
because of their race but because of being associated with the enemy + army training is not
substandard. But US military strategy cannot be justified (see L5B)
Conclusion: a system produces the individuals in it and must bear responsibility for atrocities.

Young – Guilt versus Responsibility

Arendt: Guilt: attributed to individuals who commit crimes or directly contribute (type I). Not
attributable to collectives as it loses its meaning when applied to collectives.
Responsibility: attributed to people who both actively and passively support systems in committing
crimes. Collectives can be politically responsible. Individuals are politically responsible through being
part of that group (backward looking).
Young sees political responsibility as forward looking(current events, focus on now) and argues
Arendt’s perspective is too static. Societal membership has dynamic implications as systems shape
our beliefs (forward-looking). For her our political responsibility lies in monitoring societal institutions
and maintaining organized and public spaces where people can and should speak publicly about
events affecting masses. This is about collective action, not isolated individuals.
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Week 6: Criminal Liability: Determinism and Free Will
Lecture 6A Dick Swaab on the Existence of Free Will
- Fifty percent of people’s basic characters is determined by genetic background, the rest is
mainly defined by early development (starting from the womb). Some moral rules are
already in nature, nt taught by nurture (e.g. aversion to incest).
- Self organisation in the brain: neuronal Darwinism of competing cell contacts.
- Sexual orientation can be explained by a peak in testosterone for males. It is determined
before birth, just like gender identity. Cannot be changed. This is visible in brain scans.
- Humans are aggressive species but it is enhanced by genetics, testosterone, medicine,
alcohol, puberty etc.
- Consciousness: areas of the brain work together to create consciousness. If some areas do
not work together properly you can be only partly conscious
- Readiness potential: brain making the decision 0.5 seconds before you realize it. Free will?
- 1843 was the first time that criminal justice may not always be applicable.
- Alternatives for reducing criminal behaviour other than repression
▪ More low IQ jobs
▪ Therapy
▪ Adult law from 24 onwards (when brain is developed)
▪ Schooling in prisons etc.
- Character is something permanent and programmed.
- Dick Swaab’s position: free will is an illusion. Nature does not make mistakes, just diversity.
The development of people is just the containment of free choices.
- Individuals want to feel better or happy so they do the things that satisfy their character.

Greene & Cohen – For the Law, Neuroscience Changes Nothing and
Everything
Folk physics: cognitive system that deals with the processing of info about objects obeying the laws
of physics (inanimate)
Folk psychology: deals with things that seem to operate by magic (animate) / unseen features of the
mind (e.g. beliefs, desires, intentions) → important for our moral evaluation of people as we must
consider someone to have a mind before assigning responsibility. Mind = uncaused causer.

Determinism is true if the world is completely determined by a) the laws of physics and b) the past
states of the world. It states that free will does not exist as it embraces scientific conclusions (Swaab).
Libertarianism: believe in free will and uncaused causes even though scientific proof disagrees =
panicky metaphysics.
Compatibilism: acknowledges panicky metaphysics idea but maintains that the kinds of free will
worth wanting are compatible with determinism. Free will exists but science just has to figure out
how it works. A freely willed action = rational and free of delusion.

Retributivism vs. consequentialism/ utilitarian approach to punishment as discussed before.

Retributivism requires free will as we can only assume someone deserves to be blamed when the
action was freely willed – thus, retributivism and hard determinism cannot coexist. But even though
libertarianism is intuitively appealing but is scientifically weak – we cannot base law on it. Therefore
retributivism requires compatibilism.
Consequentialism works for all three as consequentialists are only concerned with the welfare effects
of punishment for which it doesn’t matter whether the person being punished if free or not.

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The effects of neuroscience on law: “there is nothing on the neuroscientific horizon that [law]
cannot handle”. Law requires rationality to punish someone, not free will. Unless neuroscience
proves we are never rational, it can only help us to determine whether a criminal was rational while
acting. However, law does reflect moral intuitions and commitments of society. If neuroscience
changes these intuitions, it can change the law.
People have a dualist view of the world: the mind and the brain being separate entities. But science
has proven that we are our brain – threatens free will + responsibility as we intuitively understand it.

Conclusion: G&C have made an empirical prediction about the future. Neuroscience may reveal al
the mechanical processes that cause behaviour. However, there is still a place for responsibility but
only from a consequentialist motivation.

Lecture 6B Free Will and Determinism

What will society look like when people address each other as objects whose conduct is determined
by factors they cannot control? – implications of determinism on our criminal justice system.

Determinism (Swaab + G&C): people are driven by factors situated in their brain (genes/
upbringing) – free will is an illusion.
Hart + determinism: Hart’s idea of a choosing system would not function as our sense of choice
would disappear when we would not distinguish between voluntary and involuntary acts.
G&C doubt whether average citizens able to reconcile determinism and punishment. They argue the
consequentialist justification for punishment is only valid (law based on the general capacity for
rational conduct + looking at the consequences of punishment).

Arguments against determinism

- Human actors are reflective: they take account of empirical evidence and change their
conduct accordingly
- Deterministic explanations determine our daily life practises (e.g. in law we want to reduce crime so we
create jobs as we believe unemployment affects crime) hh
- Strawson: see notes below. Implications of his thoughts on the criminal justice system:
▪ Moral responsibility is tied to reactive attitudes and interpersonal relationships
▪ Criminal procedure has to make room for alternative views on what happened and
for excuses and justification.
Free Will in Responsibility
1. Intersubjective character – strawson: free will embedded in how people address each other
in normative terms (reactive attitudes)
2. Capacity to control – G&C: capacity of rational conduct + Strawson/Hart’s: excusing
conditions.
3. Standards of behavior – responsibility sets values (Strawson’s reactive attitudes) but this
downplayed by hard determinists.
A deep account of responsibility (reactive attitudes) puts parties on an equal level opposed to a
social regulation model (=seeing people as object of policy – with objective attitudes).
Should we deny the impact of determining factors? No, it may contribute to reflective orientation of
political responsibility. It does not have to undermine free will and it may empower individuals.

Strawson – Freedom and Resentment

1. Pessimists: if determinism is true there is no place for responsibility&punishment (see G&C)
2. Optimists: responsibility and punishment do not lose their meaning if determinism is true.

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 3. Alternative: the genuine moral sceptic – these notions lack application regardless of whether
determinism is true.
Goal of the text is to reconcile optimists and pessimists. Strawson believes both are wrong because
they distort the concept of moral responsibility since they both share the assumption that holding
people responsible rests upon a theoretical judgment of their being responsible. According to
Strawson, the attitudes expressed in holding persons morally responsible are varieties of a wide
range of attitudes deriving from our participation in personal relationships.
Objective attitudes: seeing someone as an object of social policy (e.g. to be trained/ cured/ managed). No
inter-personal relationship involved → social regulation model (link: Law and Econ approach).
Reactive attitudes: natural human reactions to the good or ill will of others. Personal reactive
attitudes lead to objective attitudes if the agent is ‘abnormal’ since we view him as incapacitated for
ordinary interpersonal relationships.
Could the acceptance of free will lead us to look at everyone in an objective way? No, when we look
at people in an objective way we do so because of the circumstances.
When can reactive attitudes be inhibited and objective attitudes be triggered?
- For a particular case
- For an agent whose picture of the world is insane
To strawson objectivity means excluding moral reactive attitudes and excluding elements in the
concept of responsility = conceptual shock.
Strawson is a merit-based compatibilist as he helps explain why we condemn some and praise
others – because they have violated or met our demand for a reasonable degree of good will. He
believes holding people responsible needs no external justification in the face of determinism.
Self-reactive moral attitudes: we feel obliged to behave in certain ways because of expectations.

Grace – Criminal Alternative Dispute Resolution a theory of criminal punishment, a tool

to achieve restorative justice. Practices of ADR: negotiation, mediation, arbitration and settlement.
- It shifts the focus from individuals’ rights to community building.
- It resolves conflict without state influence - victim gets a voice (not just state vs. accused).
- It focuses on the failures by both the offender and society (link: Young).
- It addresses political responsibility (link: Young & Arendt)
- It builds on the relationship between the community and the offender (healing)
- It communicates public norms.
ADR takes structural factors that affect criminal behaviour into account, just like determinism
believes environmental factors cause our actions. It allows the criminal to explain his/ her
background that might have caused the criminal behaviour. But the offender is still regarded as
partially responsible together with the community = combination of free will and determinism.

Week 7: Discipline and Responsibility in the Neo-Liberal Age

Lecture 7A Punishment and Discipline
Lecture aim: discussing history of discipline and arriving at modern day forms. Responsibilisation.

1960’s/ 70’s Postmodern critique: people started questioning modern day narratives, truth and
power (created a mistrust against bureaucracy). Also more attention for minorities. Existing
categories became more fluid and the origins of those categories were questioned.

Foucault: the world is structured through concepts, ideas and practises. None of our structured
daily practises are neutral as there are always implicit hierarchies in play. We use and reuse all our
classifications so that they become normal ‘discourse’. They seem natural but they are the product

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of power and struggle (e.g. gay vs. straight). Foucault considers himself an archaeologist knowledge:
digging in how we know things. His genealogies (tales) trail back the origin of knowledge.

19th C: the road to modernity. The time of the iron cage and class struggle but also humanism and
welfare (prison) reform. The time of order and progress. Concepts were formed: bureaucracy, nation
states + statistics, progress of medical health, criminal reform. Utilitarianism was the ideology of that
time. People accepted all of this until WW1. But it lays the foundation for what we consider normal.

The Birth of the Prison: new way of punishment replacing corporal punishment and becoming
invisble. In the past punishment functioned as a public display of sovereign power. But prison is
about the optimisation of the body, discipline and constant observation. Discipline in prison
- Parcellation in space: separation of individiauls into cubicles
- Parcellation in time: structured block of time through schedules and separate times.
- Hierarchy: guard walking around. However, this is a more anonymous hierarchy.
- Training through exercise: routines that aim to optimize the body for resocialisation.
- Optics: e.g. play of light in panopticon. Internalisation of the observant gaze = self-discipline.
The prison strategy is also used in different domains/ institutions – the omni-presence of discipline:
▪ The army: parcellation and dressage. Depersonalisation, machine behaviour, drilling.
▪ The factory: hierarchic oversight and optics. Observed by boss.
▪ The school: hierarchy and training/ dressage. Constant flow of examination.
Punishment and discipline in these domains
1. Creating ‘micro courts of law’
2. Sanctioning every deviation from the norm
3. Correction & rewards: exercising punishment to instil a sense of how it should be done.
4. Demotion promotion causes constant division in rank
5. The knowledge provided by human sciences – how to perfect the disciplinary system?

Categorisation and the Sciences: used to keep people in check

- Sociology: studies groups and how to control them
- Psychology: studies the working of the mind and how to normalize the abnormal
- Econ + Stat take stock of human resources and how to optimally utilize them
- Criminology studies factors influencing criminality and how reduce it.
Result: categories and subjectification. People internalize the identity given to them = construction of
the self through discipline. These new categories then become subject to new human sciences.

Prisons seem like the ideal disciplinary device but it has failed as it has caused the mass fabrication of
delinquents. It is the result of dissatisfaction with the past regime (corporal, public, wasteful,
uncertain, erratic → need for corrective/rehabilitative justice + property rights). However, its
persistence can be explained by the increase in political legitimacy of control and police. Prisons
make the delinquent class easier to study and control = continuum of discipline.
Discipline in our postmodern age: social media discipline (e.g. self-help books, weight loss programs)
Less hierarchical but more circulatory – people disciplining each other.
- Parcellation of time: time tables and agendas as time management
- Parcellation of space: passwords and restriced areas
- Hierarchy: feedback loop - constant supervision (e.g. evaluation of teachers)
- Training: the gym, fashion etc. all influenced by people around you
- Optics: e.g. selfie stick
Power has no locus but is has turned into a network of people disciplining each other and themselves
– very pervasive socially internalized gaze. Example cases: Facebook and Teach evaluation form.

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Garland – Punishment and Technologies of Power, the Work of Foucault
Modern punishment is utilitarian. Foucault: everything is based on power-knowledge relationships.
- The human body: the ultimate material which is seized and shaped by institutions
- Power: various forms of domination which operates wherever social relations exist – shift to
productive rather than repressive power
- Knowledge: required understanding of forces, reactions, weaknesses, possibilities of change
etc. in exercising power – power of the social sciences (link: Tavistock Programme)
th th
17 / 18 C punishment: punitive, torture, corporal, display of sovereign power.
19th C: need for efficient punishment → prison: rehabilitation, corrective justice, optimisation of the
body, invisible punishment. However, it failed as it has created criminals rather than rehabilitate
them. Nevertheless, it persists as it enables control over delinquent class + fear by non-criminal
classes will keep law and order.

Miller & Rose – The Tavistock Programme: The Government of Subjectivity

and Social Life
The subjective features of individual and social life (i.e. emotions, soul etc.) have become objects of
new expertise – social sciences. Holds out the promise of enhancing the quality of life (link:I Foucault
- optimizing people) but also enables more control over people. Understanding expertisation:
1. The government uses expert knowledge to align collective interest with individual behaviour.
2. Psychological and managerial techniques create new intervention methods
3. Subjectivity is promoted through specific regulatory techniques and expertise (?)
Tavistock programme a specialized clinic for the treatment of ‘nerve disorders’ – minor mental
troubles. Exemplary of how humans are increasingly being studied/ diagnosed to come up with proof
that the state might use to encourage certain behaviour that benefits collective interests.

Lecture 7B Governmentality and the Neo-Liberal Age

Neo-liberalism: pejorative connotation, laissez faire policy of 1980's, tax cuts, free market.
Deregulation. Emphasis on individual entrepreneurialism and economic freedom as human freedom
According to proponents:
• Unleashed a wave of economic activity and far reaching innovation
• Free trade lifted millions out of poverty and increased the availability of luxury goods.
• By separating political and economic power, economic freedom will gradually undermine
authoritarian regimes.
• Temporary inequalities will trickle down to benefit the poorer off.
According to critics:
• Allowed political power to flow into the hands of a wealthy few
• Increased income inequality
• Led to a labour force without secure jobs or rights
• The state needed repressive means to force this new insecurity on an increasingly
impoverished working class

Foucault: Neo liberalism constitutes the most recent form of governmentality - constitutes the
answer to the question: ‘why discipline?’
• Government: all action aimed at ‘steering’
• Mentality: the rationalisation of power - why we have the concepts that we have. It also
provides the rationality for institutions and interventions.
Governmentality: The way we are expected to conduct ourselves, “the conduct of conduct”. The
mentality of those steering mechanisms. The governmentality that holds sway at a certain moment is
supported by and engenders practices and discourse.

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The genealogy of neo-liberal governmentality
18th C: competition between European states. Countries needed to mobilize the population as
efficiently as possible -> the age of statistics and police = the onset of discipline ('the drilled subject').
This was all rationalized by the need for competition among nations.
19th C: too much government. The law became restricted by the market -> efficiency replaced rights.
Supply and demand created an equilibrium price instead of deciding on a fair price. The watchmen
state of the 19th C. Homo economicus: model of a 19th C person who behaved in the market.
Post WW2: Ordoliberalism. Intervention that aims to create a viable capitalist system. The state’s aim
was economic growth. Social market economy = a market supported by regulation and intervention.
The values of the market as a counter weight to purely economic rationality.
Neo liberalism (Chicago School): social order reflecting the economic order = economisation of the
social order (grid of intelligibility). All spheres treated as markets and governed my market rationale.
→Result: colonisation of the non-economic by economic concepts.

Practises and discourse in neoliberalism: people as mini-entrepreneurs, selling their skills, function
on all levels of society as all fields are considered as markets (e.g. universities - input of new students & output
of new human capital).
The participation society: "Everyone who is able will be asked to take responsibility for their own
lives and immediate surroundings. When people shape their own futures, they add value not only to
their own lives but to society as a whole." -> campaigns of (collective) responsibilisation.
Return of 19th C self-responsibility: not only an individually prudent person, but an individual whose
values align with those of society at large - productive and innovative individuals, self-management.
Congruence between the responsible and moral individual and the rational economic actor .
Discipline geared not towards the construction of a good worker, good soldier, good student, but to
continuous self-assessment and improving ‘worth’= unlimited self-discipline
The neo liberal subject: a) sets is own goals and values in accordance to what benefits society and b)
is disciplined to make his own choices responsibly (for societal interest)
Neo-punitivism: instrumentalisation – fighting irresponsible lifestyles (e.g. war on drugs)

Lecture Summary of Responsibility

Retrospective vs. prospective / Individual vs. collective / Values vs. control
Responsibility as a technique of social engineering → responsibilisation: achieving control through
instilling the right values = aligning individual values with those of the community at large.
Neo-criticism: responsibilisation is a double edged concept - increased reliance on individual
rationality may lead to criticism and people making other choices than the state wants. Can be seen
in the emergence of new social movements (sexual and drug experimentation). But it can also be
combined (rational ecological critique/ identity politics/ attention to minorities etc.).

Are we moving towards a deterministic society?

YES: network of discipline has strengthened even more than it has relented.
NO: the emphasis on the individual today is on choice and on making one's own management
decisions.

Lemke – The Birth off Bio-Politics

Ordo-liberalist governmentality in Germany: after WW2 society needed to be rebuild – done
from economic rationale. Aim: state must facilitate free markets (to prevent fascist interventionism).
Vital policy: moral and cultural values to counterbalance free play of the economy.
Frankfurt school: overcame capitalist irrationality – WHICH CAPITALIST IRRATIONALITY?
Freiburg school: made new capitalist rationality.
Chicago school: social life is a reflection of economic life – every relation is a market relation.

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Foucault: the market became the way through which we could understand people’s actions – moral
terms not necessary anymore?
Governmentality: state as a big enterprise with human capital, continuous evaluation (discipline –
responsibilisation).
Neoliberalism as a self-fulfilling prophesy: by telling people that they are self-interested, profit-
maximizing machines they will do so.
Foucault: is there a way out of neoliberalism? Yes, since we are trained to think for ourselves (even
though disciplined) we can think critically which might allow us to break free.

Buchanan – ‘Should people with unhealthy lifestyles pay higher insurance

premiums’? Three justifications:
1. Principle of inefficiency: charging more encourages a healthier life style and will thus reduce
suffering. B’s critique: no respect for autonomy
2. Actuarial farness principle: unhealthy life styles also cost the health care system more – they
must compensate. B’s critique: fat people die sooner so invalid argument
3. Implicit social contract: everyone has an individual responsibility to improve society (link:
responsibilisation). B’s critique: it is unethical to use financial incentives to enforce this
contract. Alternative: differentiated health care plans – prospective, voluntary, offering options.

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