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Notes
The late Mike Taggart notes that several very prominent scholars have been the object of more than one Festschrift volume. Michael Taggart, ‘Gardens or Graveyards of Scholarship? Festschriften in the Literature of the Common Law’ 22 Ox J Leg Stud (2002) 227, pp. 230ff.
Honorands are almost always men. See Mike Taggart, supra note 1, p. 232.
Endel Tulving, reflecting on the merits of a Festschrift [Endel Tulving, ‘Are There 256 Different Kinds of Memory?’ in The Foundations of Remembering: Essays in Honor of Henry L. Roediger III (ed. James S. Nairne; Psychology Press Festschrift Series; New York: Psychology Press, 2007), 39].
Taggart supra note 1, p. 238.
Rowan Cruft, Matthew Kramer and Mark Reiff editors, Crime, Punishment and Responsibility: the Jurisprudence of Antony Duff (Oxford: Oxford University Press, 2011), p. 5.
I limit my claim here to the English-speaking world. Criminal law theory, as George Fletcher pointed out many years ago, has been a vibrant field in the German-speaking world for many years. One further indicator of the health of criminal law theory in both the English-speaking and German-speaking world is the extent to which those two worlds now talk to one another as they did not do before. Not only are an increasing number of prominent German criminal law theorists publishing in English, but a small but growing number of English-language writers are taking an interest in German criminal law theory and even publishing in German.
And to a lesser extent, in his 1963 book Law, Liberty, and Morality (Palo Alto, CA: Stanford University Press, 1963).
Hart supra note 7, p. vii.
Hart supra note 7, p. 65.
H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 13.
Hart, supra note 10, p. 14.
Hart, supra note 10, p. 23.
Hart, supra note 10, p. 23.
The Limits of the Criminal Sanction (Palo Alto, CA: Stanford University Press, 1968). Although this book appeared in the same year as Hart’s Punishment and Responsibility, it was nonetheless heavily influenced by the essays in Hart’s book—for they had all appeared in print prior to 1968.
Paul H. Robinson, ‘A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability’ 23 UCLA L. Rev. 266 (1975), ‘Competing Theories of Justification: Deeds versus Reasons’ in A.T.H. Smith & A. Simester, eds., Harm and Culpability (Oxford: Oxford University Press, 1996).
Fletcher sets out his position on excuses in Rethinking Criminal Law (Boston: Little, Brown & Co. 1978) and in ‘The Individualization of Excusing Conditions’ 47 S. Cal. L. Rev. 1269 (1974). The Supreme Court of Canada adopts Fletcher’s reasoning but uses the language of ‘normative involuntariness’ in R. v. Perka [1984] 2 S.C.R. 232, p. 249.
Fletcher, The Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998), pp. 111ff. Hart and Fletcher are the key sources for the Supreme Court of Canada’s understanding of objective fault standards. See: R. v. Creighton [1993] 3 S.C.R. 3.
Meir Dan-Cohen, ‘Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law’ 97 Harv. L. Rev. 625 (1984). Dan-Cohen’s essay has inspired a number of others to consider this distinction, as well: Peter Alldridge, ‘Rules for Courts and Rules for Citizens’ 10 Ox. J. Leg. Stud. 487 (1990); and Paul Robinson, Structure and Function in Criminal Law (Oxford: Oxford University Press, 1997). This distinction has been endorsed by a wide variety of writers in criminal law theory and elsewhere. But it has come in for criticism from John Gardner (Offences and Defences at 114) and from me (‘Justifications, Powers, and Authority’ 117 Yale L. J. 1070, pp. 1095−1097).
In ‘Theorizing Criminal Law: a 25th Anniversary Essay’ 25 Ox J Leg Stud (2005), 353, Duff points to Michael Moore’s Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997), George Fletcher’s Rethinking Criminal Law (Boston: Little, Brown, 1978) and Alan Norrie’s Crime, Reason and History (London: Weidenfeld and Nicolson, 1993) as the three most influential, leaving out his own books from the list. But this is clearly from an excess of modesty.
Duff’s account of criminal trials is based on a deeper critique of Hart’s positivism about law more generally. (For his most thorough statement of this critique, see ‘Legal Obligation and the Moral Nature of Law’ 25 Juridical Review 61 (1980)). He insists that the law’s ‘claim on [the citizen’s] obedience must be a moral claim which is justified to her in moral terms. This latter point can best be clarified by considering… the idea that a system of law must serve the ‘common good.’ (R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 90).
Duff, supra note 20.
Duff supra note 20, p. 6.
Duff supra note 20, p. 135: ‘There are, I have claimed, close connections between the criminal process of trial and verdict and the moral process of criticism and blame…’
Duff sets out his most complete statement of his ‘secular penance’ view of punishment in Punishment, Communication, and Community (Oxford: Oxford University Press, 2001).
Markus Dubber, Criminal Law: Model Penal Code (New York: Foundation Press, 2002) at 5. Antony Duff cites Dubber (in Answering for Crime: Answerability and Liability in the Criminal Law (Oxford: Hart Publishing, 2007), pp. 15, 19) as the standard-bearer for the Hartian, punishment-centred account of criminal law.
It was John Rawls who set out this view of the trial most fully. He argued (in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 85) as follows: ‘Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to advance this purpose consistent with the other ends of the law’.
Cruft et al. supra note 5, p. 23.
Cruft et al, supra note 5, p. 49.
Duff supra note 25, p. 54.
Duff supra note 25, p. 83 n13.
Duff's fullest statement of the distiction between attacks and endangerments is set out in Criminal Attempts, (Oxford: Oxford University Press, 1990).
Cruft et al, supra note 5, p. 89.
Interestingly, neither Ashworth nor von Hirsch—both contributors to this volume—raise this objection to Duff’s work.
Andrew Ashworth and Andreas von Hirsch, Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2010).
Matravers cites four places where Duff uses the Hegelian language of ‘dogs’ (Cruft et al. supra note 5, p. 69).
T.M. Scanlon’s glib and funny suggestion, cited by Matravers (Cruft et al. supra note 5, p. 76).
Cruft et al. supra note 5, p. 74.
Cruft et al. supra note 5, p. 81.
Cruft et al. supra note 5, p. 82.
Cruft et al. supra note 5, p. 65.
Cruft et al. supra note 5, p. 373.
Cruft et al. supra note 5, p. 351.
Acknowledgments
Thanks to the fellows of Magdalen College, Oxford where I was the Robert S. Campbell Visiting Fellow when this essay was first written. Thanks also to the Social Sciences and Humanities Research Council of Canada for financial support.
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Thorburn, M. Calling Antony Duff to Account. Criminal Law, Philosophy 9, 737–751 (2015). https://doi.org/10.1007/s11572-013-9276-z
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DOI: https://doi.org/10.1007/s11572-013-9276-z