First paragraph: The awesome range of Heike Jung’s work—over different aspects of criminal law, different jurisdictions and traditions, different disciplines and languages—makes life both easier and harder for contributors to his Festschrift: easier, because one can choose almost any criminal law topic and be confident that it will connect to his work; harder (for those with the British vices of monolingualism and intellectual parochialism), since one’s paper will display the linguistic, jurisdictional or intellectual limitations that Heike Jung’s work so impressively (...) transcends. In an attempt to overcome some of those limitations, I will discuss a topic that concerns criminal trials and the scope of the criminal law, through the distinction between crimes (Straftaten) and ‘regulatory offences’ (Ordnungswidrigkeiten) which is more often formally drawn in Germany and other continental European systems than in English law. (shrink)
The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is (...) not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)
On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)
First paragraph: Dangerous driving attracts a maximum penalty of a heavy fine, or in the most serious cases up to six months’ imprisonment; but if it causes death, the maximum penalty is fourteen years’ imprisonment. Careless driving attracts a maximum penalty of a level 4 fine; driving whilst under the influence of drink or drugs attracts a maximum penalty of a level 5 fine and/or up to six months’ imprisonment: but if someone causes death by careless driving when under the (...) influence of drink or drugs, the maximum penalty is again fourteen years’ imprisonment, and for causing death by careless driving it is five years’ imprisonment. Driving when unlicensed, uninsured or disqualified attracts maximum penalties of, respectively, a level 3 fine, a level 5 fine, and a level 5 fine and/ or six months’ imprisonment; but an unlicensed, uninsured or disqualified driver who causes death faces a maximum penalty of two years’ imprisonment.2 The difference between causing and not causing death in such cases might be purely a matter of luck; we therefore face the familiar question of whether and how it can be consistent with the demands of penal justice to allow ‘outcome luck’ to make such a dramatic difference to an offender’s criminal liability. (shrink)
Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different (...) kinds of crime. (shrink)
The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; answers that try to (...) identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. (shrink)
Five pre-eminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, reflecting deeper political (...) and social conflicts. The volume as a whole shows how lively and exciting contemporary legal theory can be. (shrink)
I discuss a significant distinction between two different applications of the principle of double effect. It serves sometimes to distinguish the intended effects of an action from side-Effects which are "relevant" to it, As providing reasons against it, For which the agent must admit responsibility, And of which he is the intentional agent; and sometimes to distinguish intended effects from side-Effects which are "irrelevant" to the action, As to which the agent denies responsibility and intentional agency.