Harding Cast as a Normativist

ORIGINALLY POSTED IN DECEMBER 2012

It is an intriguing experience to see your name in print, being labelled as belonging to a movement of some kind – political or religious persuasion, cult, clan, insurgency, artistic or intellectual tendency. In this case, it was the latter, adhering to what in the trade is often called a ‘theoretical position’. Harding, it was claimed, is a ‘normativist’. I have been called a number of things in my time (for instance, a couple of years earlier, I had been accused of sounding like ‘the worst kind of 1930s reactionary’ – what ?!), but never before a normativist. Specifically, Andreas Stephan, my fellow cartel researcher from the University of East Anglia, wrote in a paper published this summer in the New Journal of European Criminal Law, ‘Why Morality Should Be Excluded from the Cartel Criminalisation Debate’ : 

‘Many criminal lawyers have felt the need to justify cartel criminalisation on normative grounds; in particular by establishing its moral delinquency. While there are some convincing arguments made to this effect by Harding and Wardhaugh ….’ 

So, I had to think about the way in which Andreas perceived my work and argument. Our site of discussion here is the criminalisation of business cartel conduct – the possible justification for and advantages and disadvantages of that legal strategy. Now, Andreas is associated with the Centre for Competition Policy at UEA, and perhaps in that sphere of influence had begun to urge that the anti-competitive damage arising from cartel activity is in itself sufficiently significant to justify criminalisation. On the other hand, I have for some time (since the first edition of Regulating Cartels in Europe, written with Julian Joshua) been engaged in the search for mens rea in such conduct – the ethically objectionable mindset (what I have sometimes described as covert, contumacious and conspiratorial conversations, nice alliteration there) as a basis for rendering the action criminal. In other words, I tend to think, we should focus on the motivation and the conduct, rather than the outcome. That’s old school criminal jurisprudence, the search for bad intention, hence normativist. I remarked to Andreas: so you are a consequentialist on this issue, and he replied that he would prefer to be called that than a ‘free market fundamentalist’, which is an extreme label that his work has attracted (there are some gonzo hacks out there in the world of legal theory). 

All this served usefully to make me more conscious of my theoretical position. When, last summer at the W G Hart Legal Workshop in London I was given the brief to explore the intersection of criminal law and administrative law in the context of market regulation, I realised that I was instinctively heading towards a normativist argument. ‘Real’ criminal law and sanctions, I argued, was about offences of conduct, whereas administrative offences and sanctions were about bad outcomes. That reasoning, it seems to me, is both cogent and convincing. But it may not find favour with those researchers who love to play around with econometric projections and calculate optimal sanctions, and if it makes me sound like the worst kind of 1930s reactionary …. well, I can live with that. 

But, then again, isn’t this just a replay of the old arguments between retributivists and consequentialists and a retreat into methodological individualism, Herbert Hart redux? Probably. As they say, there’s not much new under the sun, and here we go, reinventing the wheel again.