CJS Seminar: Lindsay Farmer
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The Crime, Justice & Society Seminar Series presents
Calculative agency and moral fault: responsibility in market offences
Prof Lindsay Farmer, University of Glasgow
About the seminar
It has often been argued that there is an affinity between the rational calculating economic subject (homo economicus) and the responsible subject of criminal law. On the one hand, the development of criminal responsibility is seen as functional for modern Western capitalism by individualising fault and enabling government through the criminal law, while on the other economic theorists have argued that criminal punishment should be seen as no more than a mechanism for ‘pricing’ certain kinds of conduct. The calculating agent in the market would be no different from the responsible subject deciding whether or not the costs of breaking the law outweighed any potential benefits. If this were the case one might expect that it would be relatively easy to establish liability for market misconduct where the calculating actor and responsible subject come together. However, the question of establishing fault for forms of market misconduct is beset by both theoretical and practical problems. Some of these problems relate to markets (who is responsible if prices rise or fall? What is the role played by ‘market forces’ which encourage the belief that outcomes are not the result of intentional action but caused by hidden or anonymous forces?); others to the kind of organisations that operate in markets (who is responsible for the conduct of a trader or group of traders?); others still to technological innovations, (such as algorithmic trading) which seem to displace individual decision making altogether. There is thus tension between the idea of the rational entrepreneurial subject and the capacity of criminal law to attribute responsibility for any particular outcome. This paper will explore some of these issues to ask how the criminal law can make individuals or organisations responsible for market misconduct.
About the speaker
Lindsay Farmer joined the School of Law in 1999. He studied law at the University of Edinburgh before doing an M.Phil. in Criminology at the University of Cambridge and a Ph.D. at the European University Institute in Florence. He has previously held teaching posts at the University of Strathclyde, and at Birkbeck College, University of London, where he helped establish a new LLB course. He has spent time as a visiting professor at the Center for Law and Society in the University of California at Berkeley, the University of Toronto, Columbia University, New York and the University of Sydney.
His books include Making the Modern Criminal Law. Criminalization and Civil Order (Oxford 2016); Criminal Law, Tradition and Legal Order. Crime and the Genius of Scots Law 1747 to the Present (Cambridge 1997); (with A. Duff, S. Marshall & V. Tadros) The Trial on Trial. Vol.III Towards a Normative Theory of the Criminal Trial (Hart Publishing 2007); and (with S Veitch & E Christodoulidis), Jurisprudence. Themes and Concepts (2nd ed) (Routledge, 2012).
He has recently been awarded a Leverhulme Trust Major Research Fellowship (2019-2022) to work on a project entitled "Rethinking the Relation between Criminal Law and Markets". This will explore aspects of the relationship between criminal law and markets over the modern period to ask when, if at all, it is appropriate to use the criminal law to regulate markets and what sort of financial or economic conduct can justifiably be criminalised.
Lindsay was Editor-in-Chief of the journal New Criminal Law Review between 2008 and 2012. He is on the editorial boards of Social & Legal Studies, Criminal Law and Philosophy, Law and Humanities, and Law, Culture and the Humanities. In 2019 he was elected as a Fellow of the British Academy.
Calculative agency and moral fault: responsibility in market offences
Prof Lindsay Farmer, University of Glasgow
About the seminar
It has often been argued that there is an affinity between the rational calculating economic subject (homo economicus) and the responsible subject of criminal law. On the one hand, the development of criminal responsibility is seen as functional for modern Western capitalism by individualising fault and enabling government through the criminal law, while on the other economic theorists have argued that criminal punishment should be seen as no more than a mechanism for ‘pricing’ certain kinds of conduct. The calculating agent in the market would be no different from the responsible subject deciding whether or not the costs of breaking the law outweighed any potential benefits. If this were the case one might expect that it would be relatively easy to establish liability for market misconduct where the calculating actor and responsible subject come together. However, the question of establishing fault for forms of market misconduct is beset by both theoretical and practical problems. Some of these problems relate to markets (who is responsible if prices rise or fall? What is the role played by ‘market forces’ which encourage the belief that outcomes are not the result of intentional action but caused by hidden or anonymous forces?); others to the kind of organisations that operate in markets (who is responsible for the conduct of a trader or group of traders?); others still to technological innovations, (such as algorithmic trading) which seem to displace individual decision making altogether. There is thus tension between the idea of the rational entrepreneurial subject and the capacity of criminal law to attribute responsibility for any particular outcome. This paper will explore some of these issues to ask how the criminal law can make individuals or organisations responsible for market misconduct.
About the speaker
Lindsay Farmer joined the School of Law in 1999. He studied law at the University of Edinburgh before doing an M.Phil. in Criminology at the University of Cambridge and a Ph.D. at the European University Institute in Florence. He has previously held teaching posts at the University of Strathclyde, and at Birkbeck College, University of London, where he helped establish a new LLB course. He has spent time as a visiting professor at the Center for Law and Society in the University of California at Berkeley, the University of Toronto, Columbia University, New York and the University of Sydney.
His books include Making the Modern Criminal Law. Criminalization and Civil Order (Oxford 2016); Criminal Law, Tradition and Legal Order. Crime and the Genius of Scots Law 1747 to the Present (Cambridge 1997); (with A. Duff, S. Marshall & V. Tadros) The Trial on Trial. Vol.III Towards a Normative Theory of the Criminal Trial (Hart Publishing 2007); and (with S Veitch & E Christodoulidis), Jurisprudence. Themes and Concepts (2nd ed) (Routledge, 2012).
He has recently been awarded a Leverhulme Trust Major Research Fellowship (2019-2022) to work on a project entitled "Rethinking the Relation between Criminal Law and Markets". This will explore aspects of the relationship between criminal law and markets over the modern period to ask when, if at all, it is appropriate to use the criminal law to regulate markets and what sort of financial or economic conduct can justifiably be criminalised.
Lindsay was Editor-in-Chief of the journal New Criminal Law Review between 2008 and 2012. He is on the editorial boards of Social & Legal Studies, Criminal Law and Philosophy, Law and Humanities, and Law, Culture and the Humanities. In 2019 he was elected as a Fellow of the British Academy.
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