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which the fixed " t a r i ff would be unfair, and thus work a
gross inequality.
Accordingly, since it seems that the true constitutional
vision requires a recognition of factors other than the harm
produced by a particular offence, it is submitted that a
mandatory sentencing scheme is constitutionally suspect
since it precludes individualised sentencing. There is a
constitutional need for a judicial response to variations in
blameworthiness with regard to specific offences.
The subjective emphasis questioned
The analysis carried out above clears the way for a more
acceptable vision of the role of the principle of legality, the
conditions of criminal responsibility and the principle of
proportionality in the criminal law. That vision is
extracted from, and grounded in, the ultimate norm, the
Irish Constitution. It may be mentioned at this point that a
recent work of Professor George Fletcher questions such a
subjective approach.
32
Fletcher investigates the archaeology of the criminal
law, his gaze searching out the categories of thought
governing the structure of doctrine about crime in
"Western" culture and beyond. Building on historical and
comparative sources he suggests two "patterns of
criminality reflected in doctrinal statements about the law
of theft. Firstly, the "pattern of manifest criminality"
evinces as its crucial feature "that the commission of the
crime can be objectively discernable at the time it occurs".
33
The assumption is that an impartial observer could
identify the conduct as criminal even if he did not know
precisely what the offender's intention was. Secondly, in
contrast, the "pattern of subjective criminality" starts
from the assumption "that the core of criminal conduct is
the intention to violate a legally protected interest".
34
Fletcher traces the influence of these contrasting
"patterns" upon matters of doctrine in areas of offences
against property, attempts, crimes of possession,
conspiracy, and several other offences.
He rejects, rather peremptorily, the critical role of moral
philosophy in the criminal law as a method of examining
the soundness of popular conceptions about criminal
responsibility. His patterns of criminality simply present
themselves as distillations of historical community
experience; and the theorist simply discovers the
principles of liability implict in the system of criminal law.
His view is also normative however, in that it is a theory
about the proper conditions of just punishment; "for each
[pattern] states a plausible and coherent theory for pro-
hibiting and punishing conduct as criminal".
33
In the
fashion of Savigny the theories are extracted from, yet
justified by, the accretion of legislation and judicial
judgments. The patterns of subjective criminality would
represent, in the main, the theme of criminal responsibility
outlined in this article and prevailing in the jurisprudence
in view of critical moral philosophy. Fletcher, however,
sees dangers lurking in the pattern of subjective
criminality.
The gravamen of Fletcher's complaint against the
subjective focus is that it hinges on an overriding desire to
prevent future harm. As regards "subjective criminality"
Fletcher states that the requirement of intent "refers to an
event in the subject's consciousness that provides a basis
for predicting that the actor will violate a legally protected
interest".
36
He reiterates that the processes of the criminal
law are different and ought to be kept distinct from
administrative processes, such as civil commitment of the
dangerously insane. The law operates "by means of pre-
announced standards of behaviour that are interpreted and
applied in particular cases".
37
It would be wrong to
consider "whether in a particular case a person ought to be
held criminally liable according to whether he is
dangerous".
38
Referring to the law of attempts, he makes
the point that the move to subjectify the criminal law
rejects the "principles of legalism". The problem is, he
thinks, that subjectivists are marked by a failure to
differentiate between the systemic goals of the criminal law
(i.e., to isolate and imprison dangerous persons) and the
standards for judgment in individual cases. That failure he
concludes betokens a collapse of the distinction between
criminal punishment and civil commitment.
It is suggested that Fletcher's criticism is misplaced.
Firstly, his criticism contradicts the premise of his analysis
that the current data of legal experience provide a
paradigm of thought in regard to the criminal law.
Currently the subjective focus prevails, so this would
appropriately be recognised as the paradigm. Yet Fletcher
rejects it. Secondly, it is true that a distorted version of
"subjective criminality" involved a technique of crimi-
nalising substantively innocent conduct. For example,
under the draconian Vagrancy code it was routine to
punish an individual if he was a "suspected person" (i.e.,
having previous convictions) found "loitering" and who
entertained a legislatively proscribed intent
(i.e.,
to rob
and steal). It was not necessary for the prosecution to prove
the existence of actual
intent.InFletcher's terms, the
character and the location demonstrated irrebuttably the
accused's intent. Guilt hinged on an unmanifested intent,
and was "proved" by an inference from the condition of
the accused. Judgment was really made by the police who
arrived at a probalistic conclusion that the suspected
person had the prohibited intent at the relevant time. But it
is evident from
King
that this approach is indefensible
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