This paper will examine whether the Character and Choice-capacity theory can serve as adequate explanations for the conditions delineating when it is fair for the State and society to hold a person liable for a crime and subsequent disposal within the criminal justice system. As reform of the Law’s inequalities and weaknesses is as central to legal scholarship as the quest for meta theory, underpinning this quest is the premise that ‘when it is fair” must have a principled, just, foundation which acknowledges the disproportionate appearances in the courts of the poor, the marginalized, and the mentally ill, and the relatively rare appearances of more powerful and wealthy individuals.
Context of Argument
It is comparatively recently that the question of when it is fair, in the sense of the elaboration of the conditions in which responsibility for conduct, for the state to hold a person liable for crime has assumed any importance. Apart from the excuse of insanity  a person was assumed to be accountable for their conduct and any examination was not into the voluntariness or the cognitive or in the subjective mind of the defendant, but into evidence about his character and reputation, gleaned from his interaction with other members of his community. The turn of the 20th century saw the rise of the State and the sciences, in particular Psychology, and an ideal subjectivist account of culpability with a focus on the individual’s cognitive and volitional capacities. Tadros  argues that the subjective and cognitive language of the law began to obscure the process of legal and moral judgment in the criminal law and although moral considerations are the backdrop to criminal conduct, they are generally seen as irrelevant to culpability, finding a home in the excuses.
Contained within the seeds of science was also Darwinian theories of determinism.  Both soft and hard determinists acknowledge that that as citizens we have all degree of autonomy. Soft determinists argue that this is sufficient to justify holding people morally responsible for their acts even if they lack the greater autonomy to revise their will. Hard determinists insist that moral responsibility requires a greater degree of autonomy over the genetic and environmental factors that shape our character and are therefore in agreement with Aristotle that responsibility for our conduct is based on our own moral responsibility for forming our character – but they but they rely on a deterministic account of human action to show that is a Herculean if not impossible task. 
Notwithstanding this evidence which undermines the concept of the independent , equal citizen, and the fact of disproportionate sharing of society’s wealth, the Law is still premised on laissez-faire principles which supports it. The law singles out individuals, annuls other aspects of their character and circumstances and holds them responsible for their actions in accordance with a general rule of law. The search for a unifying theory to account for culpability in the Law must therefore by definition be within this normative framework which diverts focus from the State’s own conduct in respect of sharing resources with citizens and its role in criminalizing and/or pursuing only certain types of conduct and this, I submit is not satisfactory.
Choice theory is founded in Kant’s view of the “will” as the locus of moral worth, and as the focus of moral appraisal. Moore’s  account of choice theory is that the requirement for culpability – for those who wrongfully cause harm intentionally, knowingly, or recklessly choose their wrongful conduct, whereas those who act in self-defence, under duress or provocation do not have a real choice about whether or not to cause harm. In other words, the presence of absence of choice ” is the anvil on which the culpability
conditions are hammered out”  . A defendant is excused according to Moore, “because
and only because at the moment of the action’s performance, one did not have sufficient capacity or opportunity to make the choice to do otherwise” . Duff argues similarly that the “moral worth” of an action depends, not on its actual outcome, which is subject to chance, nor on the thought processes which may help to motivate one’s action, but rather on the will which is situated within the “autonomous” self and which is within an agent’s direct control . For Duff, what is truly one’s own is one’s “will” and whether the exercising of this will, or choice, is in harmony with the law is the focus of choice theory as the rightful vehicle for culpability. Duff notes that choice theory allows for a Liberal conception of the State which insists that while we might dislike the manifestations of a person’s character, it is only the manifest will that may be subjected to the law’s coercion.  H.L.A. Hart’s in Punishment and Responsibility reiterates this in his discussion of responsibility when he argues that the crucial question “both for moral and legal responsibility” are the “character and extent of a man’s control over his own conduct. ” Moore  recognized also that this basic element of “control” must be combined with the capacity to obey the law Hart agrees saying:
“What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise those capacities.” 
Choice theory must presume that there are alternative courses of action and Moore must have contemplated that intentional or reckless wrongdoers could have chosen not to harm or risk causing harm, but this could create a lacuna for those who act impulsively without consciously choosing. They act spontaneously but in law they are and must be equally as culpable. 
Choice theory also stumbles to provide a rationale for assigning culpability in negligence. One who acts negligently is unaware but should be aware of a significant and unjustifiable risk of harm. Moore maintains that negligence has no place in Mens Rea, arguing that simple failures to exercise capacities to avoid wrongdoing are insufficient to amount to criminal culpability. This would certainly reduce the Theory’s aspiration to be a unifying theory of culpability. Hart however, upholding the Kantian view, argues that the negligent defendant could still be blamed as he had the capacity and fair opportunity to avoid the conduct but left the capacity unexercised. 
Performing a criminal act for reasons of social utility  or from proportionate self-defence, will found a justification defence and a complete exoneration. Without a social utility justification however, the choice theory’s poverty is exposed. It can only explain a defendant’s lack of culpability if he is able to deny that he chose to perform the prohibited act where for example, he was mistaken, performed the act accidentally, or that he moved his body involuntarily. Paul Robinson  has suggested that all excuses are in essence a “disability requirement” which inhibits choice. It can be long term or permanent as in subnormal intelligence, temporary as in intoxication, somnambulism and automatism. It may stem from an internal cause such as in insanity, or from an external threat as in duress – excuses cannot however take into account any social, economic deprivation and abuse which may have influenced the defendant’s conduct. 
Moore makes his case for a content neutral theory of culpability and thus does not include justifications which are content based. Instead he argues, they help ‘constitute the subject matter for a theory of substantive morality’ (p. 43) and are thus not at home in the special part. As Norrie  notes however, whether justification and excuse, can be kept sufficiently apart to preserve the content-neutrality of the general part is debatable. In the excuse of duress, culpability depends on whether the jury find that the D was justified in performing the prohibited act, in which case, justification and wrongful action become essential elements in the theory of culpability, and are not external to it  .
The position of this paper is that it is undesirable in any event to keep substantive morality out of a theory of culpability. Moore’s position sits well within a liberal-individualist discourse  which supposes a conception of the accused as a moral agent abstracted from his social circumstances, when it is these circumstances that are the most likely influence on his conduct. The choice-capacity model promotes what Duff calls the ” fiction of the rational choosing individual” who bears little resemblance to the “socially situated” defendants who appear in court. It is arguable that extending the “capacity” element to include a broader ambit of what is meant by a defendant having the capacity and a ‘fair opportunity to conform to the law” might provide a richer seam to mine in this respect. It would involve not just examining the immediate temporal situation surrounding the defendant’s conduct but also the “larger picture” view of the role of his particular social situation in his conduct  .
Character theory has it is argued provided such a richer seam with respect to founding a general theory of criminal culpability. Pincoffs, among others, sources the theory in Aristotlian  and Humean origins.
The unsatisfactory abstraction of the defendant’s actions in Choice theory help to explain the attraction of the Humean character-based theories of liability. For character theorists such as Bayles and Pincoff, what matters is not only the defendant’s conduct but also the character traits that can be inferred from her conduct. Pincoff states that
“she should be criminally liable if and only if we can infer some relevantly defective or undesirable character trait from her conductaˆ¦. excuses exculpate those who commit what is defined as a criminal act if and because they cite some factor that blocks the usual inference from criminal conduct to defective character trait.”
For the character theorist the criminal act manifests a character trait and is the inevitable result of earlier behavior or attitudes, that led to the development of the character trait in the first place. So although the prohibited conduct is to be located and determined by something “inside” the agent, it is not chosen in the temporal or immediate way that the choice theorist requires.  The character theory has considerable normative potential. The general exemption held out to young children and insane persons will be justified on the grounds that such people have not yet sufficiently matured or developed moral characters to be judged in action.
Horder argues that the theory leaves no “moral space” for momentary slips on the part of people of good character as they will nevertheless be still culpable, and this is a valid point – for if the act is so out of character, why should the law penalize at all? the answer may lie in a “floodgates” argument. This can be contrasted with Bayle’s view of the ease in which negligence is dealt with by character theory. On the Humean character view, as the actor is unaware of the harm, the act does not point toward a character trait as undesirable as that evidenced by intention or recklessness. This also explains why one act of negligence would not lead to an inference of bad character and explains the difficulty felt to be inherent by many people in punishing negligent conduct.
One of Bayles’ suggested premises for character theory has been roundly criticized by Horder who argues that the former misrepresented the theory when he argued that at it is the defendant’s character rather than his conduct which is the focus of culpability. Horder notes that in doing so, Bayles “wrongly elevates the character theory from a theory about criminal culpability into a theory of criminal liability” and that this position has been “rightly critcised.” Antony Duff  has also pointed out, there is a difference between treating character as a “condition of liability” and as an “object of liability’ and in a liberal-individualist society in which the State must play a minimalist role, there could be no reason to prohibit the formation or display of bad character as such.
It is argued with respect that as liability flows from culpability the two concepts are so closely connected, in the same way that the excuses are related to the general part, that to separate them would reduce the theory to a less than useful abstraction, and, as Young Jae Lee  has noted :
“Character is relevant to the extent that it is manifested in action, and action is
blameworthy to the extent it reflects a bad character. What this means is that
the focus of blameworthiness analysis remains on acts, not character, and this
in turn means that there is no difference between punishing the act and punishing
the character, as far as our culpability evaluation is concerned”
Aranella  argues that a capacity for critical self reflection is one of the attributes that a character based conception of culpability presumes. It is not a capacity than can be can be explained solely by referring to a defendant’s ability to engage in reasoning about the best means to reach an end as with Choice theory.
Pincoffs argues that we may not be initially responsible for our character formation but as mature adults we can intervene to shape or maintain our characters  . Aranella also ascribes moral culpability in the defendant’s earlier failure to do something about a character flaw – “we blame him for not acting as a reasonable person for his failure to remedy defective character attributes which prevent him from acting as one.”
This is a highly contentious position. Are we the reflective idealized subjects that the character theory presumes? This is, I submit one of the major difficulties with character theory – reflective thinking is not the way most people organize their lives.
Once again it appears that the Character theory fits into a liberal, individualistic, laissez-faire view of the law and its subjects. The character theory, as with the choice theory, does not take into account the potential effects of social deprivation and unjust social advantages which might militate against such an attitude of self care and self-awareness.
Lacey  argues that ” there are ethical arguments which should found our attempts to theorise normatively.” Ethical considerations need to be brought to bear on law and its reform, an, that the law could be more just and ethical remains central to progressive legal scholarship. To situate the nexus of criminal responsibility within either choice or character makes a statement about the defendant but says very little about the State.
Horder  notes: the very diversity of mens rea terms employed by the criminal law, the number of excusing conditions, which continue to grow  or are modified as society advances or regresses,  and the law’s focus sometimes on intention in both its forms, other times on capacity and yet at other times on opportunity, and even on other factors, depending on the defendant’s plea, must defeat attempts to summon up an overarching theory of culpability.
Choice theory fails on a number of levels as a coherent response to the quest for an overarching principle of culpability. Its focus on the act does of course assist in circumscribing the scope of the criminal law but it omits too much that is relevant to criminal liability. Duff  argues that the familiar liberal concern with State intrusion into citizens’ extra-legal moral relationships runs to the core of choice theory and allowing the state to take a closer interest in its citizens’ affairs than traditional liberals would allow would appear to be fraught with negative connotation. But it is arguable that this is only one side of the coin. Any theory of culpability which neglects the link between a defendant’s social, economic context and free market economics or a history of abuse, and the perpetration of violence, must be fundamentally flawed. We could and should favour a holistic account of culpability and liability which takes account of social injustice, rather than deny the relevance of this information.
Yet Moore would accuse those who would insist on such a link of “false sentimentality, liberal guilt-displacement, elitism, pseudo-egalitarianism, and narcissism and he would dismiss the defendant’s circumstances as irrelevant since ‘everybody has a story’ which ‘hardly excuses’ 
Character theory has a number of implications for the role of the State and of the community. It could point the way for intrusive State interventions, for if character traits are indeed the object of criminal culpability and not specific conduct, why should the state wait for the conduct to manifest itself? This of course offends against a range of presumed civil liberties and abrogates a fundamental rule of law that a person’s innocence is presumed unless he is proven to have broken the law. On the other hand, for those citizens who are exposed to the raw edges of social disintegration, this is clearly unsatisfactory. The Law’s interest in character could also as Duff  suggests, lead to the criminal law to express “the moral demands we make of each other as fellow members of the community.” 
While we continue to tinker within the liberal laissez-faire framing of the law, Lacey would argue for a much more radical approach ‘…as Marxists saw, the deep reconstruction of the legal has to be premised on the reconstruction of economic, political, social relations: on massive changes in the configuration of power at every level.” 
3200 words including footnotes.