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Defending the Realm of Criminal Law

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Abstract

This is a response to ten critiques of my 2018 book The Realm of Criminal Law, by Stephen Bero and Alex Sarch, Kim Ferzan, Stuart Green, Doug Husak, Nicola Lacey, Sandra Mayson, Victor Tadros, Patrick Tomlin, Alec Walen, and Gideon Yaffe. I take the opportunity to explain the main aims and themes of the book, to clarify some of its arguments, and to note some of the ways in which those arguments need expansion, development, or revision. Topics discussed include: the usefulness and limits of ‘rational reconstruction’ as a method of normative theorising; public wrongs and the scope of the criminal law; the idea of civil order as central to a political theory of criminal law; wrongness constraints on criminalization; mala prohibita and regulatory offences; the ‘De Minimis’ principle; and criminal law ‘abolitionism’.

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Notes

  1. R A Duff, The Realm of Criminal Law (Oxford University Press, 2018); hereafter Realm.

  2. See R A Duff, L Farmer, S E Marshall, M Renzo, and V Tadros, ‘Introduction: Towards a Theory of Criminalization?’, in Duff et al. (eds), Criminalization: The Political Morality of the Criminal Law (Oxford University Press, 2014), 1, which describes the project, and the other publications that it produced—and explains why it did not produce such a theory. I should record here my enormous debt to my colleagues on the project, as well as to the UK Arts and Humanities Research Council, which funded the project.

  3. This principle is formulated in Realm 232, 275, 277, and explained in chs 6–7.

  4. My focus in the book is almost entirely on the domestic criminal law of nation states (but see ch. 3.1–2): whatever the future of the nation state, this is the context in which criminal law is most fully developed.

  5. Michael Moore is the best known contemporary proponent of this more ambitious kind of legal moralism: see e.g. Moore, Placing Blame: A Theory of Criminal Law (Oxford University Press, 1997), chs 1, 16, 18.

  6. See, e.g., M Thorburn, ‘Criminal Law as Public Law’, in R A Duff and S P Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press, 2010), 21; V Chiao, Criminal Law in the Age of the Administrative State (Oxford University Press, 2019).

  7. See especially L Farmer, Making the Modern Criminal Law (Oxford University Press, 2016).

  8. The most a master principle can plausibly offer is an account of what gives us good reason to criminalize, not of what we should criminalize all things considered.

  9. See V Tadros, Wrongs and Crimes (Oxford University Press, 2016), 112–4.

  10. N Lacey, ‘Approaching or Re-Thinking the Realm of Criminal Law?’, in this issue, 307; bare page references in this section are to this paper.

  11. N Lacey, In Search of Criminal Responsibility: Ideas, Interests, and Institutions (Oxford University Press, 2016), 178–9.

  12. Compare Dworkin’s discussion of ‘fit’ and ‘justification’ as criteria of successful interpretation (see R M Dworkin, Law’s Empire, Fontana 1986): rational reconstruction might be more concerned with fit, or more concerned with justification.

  13. See also P Tomlin, ‘Duffing Up the Criminal Law?’, in this issue, 319, at 330.

  14. See further s. 7 below; and Realm chs 2.4, 7.5.

  15. See further R A Duff, L Farmer, S E Marshall, and V Tadros. The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2007), ch. 6; but compare R L Lippke, The Ethics of Plea Bargaining (Oxford University Press, 2011), for a less hostile principled account of plea-bargaining.

  16. See Realm ch. 7.2–3.

  17. See Realm, 195; P Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997), 183–200.

  18. Tomlin, n. 13 above; bare page references in this section are to this paper.

  19. If my interest is thus explanatory, I will operate with what Tomlin calls the ‘Positive Only’ interpretation of the public wrongs principle [328]; but it will then figure as a principle about what members of the polity will see reason to criminalize, not about what there is reason to criminalize.

  20. See R A Duff, ‘Perversions and Subversions of Criminal Law’, in Duff et al. (eds), The Boundaries of the Criminal Law (Oxford University Press, 2010) 88.

  21. There is therefore room for a modest pluralism, and a modest relativism, about conceptions of civil order. Tomlin wonders why I should be a pluralist about ‘political morality’, but apparently not about ‘individual morality’—about what is wrong [328–9]. Much more needs to be said about this (including much more about the difference between pluralism and relativism, and between both of those and tolerance for what we take to be mistaken beliefs or practices), but a starting point might be to note that differences in conception of civil order are often differences about the good(s), whereas the differences about ‘individual morality’ that concern Tomlin concern what is wrong: there is more room for pluralism about goods and how they are to figure in our individual or collective lives than there is for pluralism about what is wrong.

  22. V Tadros, ‘Criminalization: In and Out’, in this issue, 365.

  23. See Realm ch. 3.1; M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford University Press, 2003).

  24. K Ferzan, ‘The Reach of the Realm’, in this issue, 335.

  25. ‘As the Roman, in days of old, held himself free from indignity, when he could say Civis Romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong’ (Lord Palmerston, lately quoted by a British minister, Jacob Rees-Mogg: Hansard vol. 678, 2 July 2020, col. 537).

  26. See Realm 118.

  27. See, e.g., German Strafgesetzbuch §§ 3–7 (nor does Germany extradite German citizens to other countries in whose territory they have committed offences: Grundgesetz Art. 16).

  28. See e.g., in English law, murder (Offences Against the Person Act 1861, s. 9), and any of a range of sexual offences (Sex Offenders Act 1997, s. 7 and Schedule 2).

  29. Since Ferzan agrees (p. 344) that ‘two polities should not exercise jurisdiction over the same wrong’.

  30. See e.g. Extradition Act 2003, ss 64–5, 137–8; Realm 97–8, 115–6.

  31. Ferzan, 341. This is oversimplified, since national professional bodies may deal only with misconduct that bears on the doctor’s fitness to practice in that country: the General Medical Council deals only with fitness to practice in the UK (Medical Act 1983). The World Medical Association claims to ‘represent physicians’ across the world, and one objective is to ‘promote the highest possible standards of ethical behaviour and care by physicians’ (https://www.wma.net); but it makes no claim to call malpractising doctors to account.

  32. See Ferzan, 341.

  33. Ferzan, 340.

  34. See Realm ch. 1.3.

  35. But see n. 28, and text at n. 30, above.

  36. See Realm ch. 3.3.

  37. See Ferzan, 341–3; G Yaffe, ‘Punishing Non-Citizens’, in this issue. For reasons of space, I can only discuss Yaffe’s arguments here. Bare page references in the remainder of this section are to Yaffe’s paper.

  38. To be precise, Yaffe thinks that his prosecution would very probably, but not certainly, be justified [362–3].

  39. See Realm 201–2; M S Moore, ‘Four Reflections on Law and Morality’ (2007) 48 William & Mary Law Review 1523, at 1540.

  40. See Realm ch. 7.4; the explanation of his accountability will be somewhat different insofar as his offence is a malum prohibitum, but not in ways that need concern us here.

  41. See Realm 122–7.

  42. See Realm 128–9, 181.

  43. Tadros, n. 22 above (page references in the following three paragraphs are to this paper); see Realm ch. 2.4.

  44. See V Tadros, ‘Wrongness and Criminalization’, in A Marmor (ed.), Routledge Companion to Philosophy of Law (Routledge, 2012) 157, at 169–72, and Wrongs and Crimes (n. 9 above), ch. 17; Realm, 59–61, 327–31. See also s. 7 below on mala prohibita.

  45. See Realm 284–6 (also 17–19), and further references there.

  46. See R A Duff, ‘Crimes, Regulatory Offences and Criminal Trials’, in H Müller-Dietz et al (eds), Festschrift für Heike Jung (Nomos Verlagsgesellschaft 2007) 87.

  47. See also A Cornford, ‘Rethinking the Wrongness Constraint’ (2017) 36 Law and Philosophy 615, for an argument that the Wrongness Constraint is plausible only if it is understood to be ‘presumptive’.

  48. See Tadros 370–1, Wrongs and Crimes (n. 9 above) 98–101; Realm 61–3, 249–50.

  49. See Duff, n. 20 above.

  50. See Realm 249, and further references there.

  51. See e.g. L Alexander, ‘Deontology at the Threshold’ (2000) 37 San Diego Law Review 893.

  52. Tomlin, n. 13 above; bare page references in the remainder of this section are to this paper.

  53. See Tomlin 323–4; on queue-jumping, see Realm 163, 282–4.

  54. See also D Husak, ‘Criminal Law at the Margins’, in this issue, 381, at 385: the principle ‘offer[s] little instruction about when to criminalize as opposed to when the public should respond in some non-punitive manner’.

  55. Matters would be different if those others were liable to over-react in violent ways, or if queue-jumpers were also intimidating the other queuers; but then other criminal offences would come into play.

  56. And these need not be state interventions: shops and other kinds of business can maintain their own formal systems of queuing, enforced by non-admission or eviction.

  57. Husak, n. 54 above.

  58. See A Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (Basic Books, 2018); I Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Era of Broken Windows Policing (Princeton University Press, 2018).

  59. See e.g. R Allen, ‘Alternatives to Prosecution’, in M McConville and G Wilson (eds), The Handbook of the Criminal Justice Process (Oxford University Press, 2002) 167; A J Ashworth and M Redmayne, The Criminal Process (4th edn; Oxford University Press, 2010), ch. 6.

  60. See Husak, in this issue, 388–9.

  61. New York Penal Law $ 165.15: see https://www.amny.com/news/turnstile-jumping-won-t-be-prosecuted-in-manhattan-starting-this-fall-da-vance-says-1-13775175/; https://www.politico.com/states/new-york/city-hall/story/2018/02/01/manhattan-da-will-no-longer-prosecute-turnstile-jumping-229568.

  62. Assistant DA Karen Friedman Agnifilo, cited and quoted at https://www.politico.com/states/new-york/city-hall/story/2018/02/01/manhattan-da-will-no-longer-prosecute-turnstile-jumping-229568.

  63. City Councilman Rory Lancman: https://www.amny.com/news/turnstile-jumping-won-t-be-prosecuted-in-manhattan-starting-this-fall-da-vance-says-1-13775175/).

  64. See M C Love, J Roberts, C M Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2nd edn; Thomson West, 2016).

  65. And see at n. 59 above.

  66. And think of punishment as typically imprisonment: see Husak, on ‘our fixation on incarceration’.

  67. Compare Cyrus Vance’s comments on why he would sometimes prosecute fare dodgers: see n. 61 above.

  68. But insisting on going to trial must not expose the alleged offender to harshly disproportionate burdens: compare Lippke, n. 15 above, 43–59, on ‘trial penalties’.

  69. Compare also US Attorney General Eric Holder’s 2013 policy of directing federal prosecutors not to bring charges against non-violent low-level drug dealers that would expose them to harsh mandatory minimum sentences: https://www.justice.gov/sites/default/files/ag/legacy/2014/04/11/ag-memo-drug-guidance.pdf.

  70. The English Code for Crown Prosecutors (https://www.cps.gov.uk/publication/code-crown-prosecutors) provides a nice example of how this discretion may be formalised.

  71. See Tadros, ‘Wrongness and Criminalization’, n. 44 above; Realm 58.

  72. This sketch of one kind of malum prohibitum leaves out many other kinds of regulation that we might have good reason to create, and other kinds of reason why citizens ought to obey such regulations, such that their violation can be legitimately criminalized as wrongful: see further Realm chs 2.4, 7.5–6.

  73. See Model Penal Code § 2.12; Realm 67–70.

  74. S Bero and A Sarch, ‘The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita’, in this issue, 395, at 407 (bare page references in the next two paragraphs are to this paper).

  75. See Realm 69–70: operating with this presumption is normatively plausible only if obeying the regulation does not impose unreasonable burdens or constraints on those who could safely violate it.

  76. See further R A Duff, ‘Discretion and Accountability in a Democratic Criminal Law’ in M Langer and D Sklansky (eds), Prosecutors and Democracy (Cambridge University Press, 2017) 9.

  77. See R A Duff, ‘Legal Reasoning, Good Citizens, and the Criminal Law’ (2018) 9 Jurisprudence 120.

  78. It matters what such criminal liability would bring with it, in the way of punishment, stigma and collateral consequences: but if the breach of a regulation is not seriously wrong, those consequences should be mild.

  79. S P Green, ‘Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation’, in this issue; bare page references in this and the following two paragraphs are to this paper.

  80. Which is of course a large ‘if’; but I take it to be a basic, though often violated, principle that people should be criminally convicted and punished only for wrongs that they have been proved to have committed.

  81. See Road Traffic Regulation Act 1984, ss 81–9; Road Traffic Act 1988, ss 2, 4, 5.

  82. See Cornford, n. 47 above, 640–1.

  83. A Walen, ‘Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model’, in this issue; bare page references in the remainder of this section are to this paper.

  84. The requirement that their distribution be fair takes us back to the first condition: penalties are fair only if those penalised had a fair opportunity to avoid them.

  85. Though there are questions about what such ‘penalties’ might consist in. Are there modes of ‘hard treatment’ (e.g. imprisonment) that might be appropriate as punishments, but not as Walenian penalties?

  86. See Walen, 434: unlike e.g. the German Ordnungswidrigkeitenrecht, ‘penal law consists in a distinct sort of justification for the penalties that are an essential part of the criminal justice system’.

  87. If she commits no wrong, and threatens no harm either to other people or to the regulatory system itself, can we really say that she has forfeited her right not to suffer hard treatment?

  88. Tadros, n. 22 above, 378.

  89. See Realm, ch. 5 (also ch. 4.7). This is a key difference between my account and a ‘public law’ account such as Chiao’s (Chiao, n. 6 above); see also A Harel, Why Law Matters (Oxford University Press, 2014).

  90. Tadros, n. 22 above, 378.

  91. S Mayson, ‘The Concept of Criminal Law’, in this issue; page references in the remainder of this section are to this paper.

  92. Recent discussions about ‘abolishing’, or ‘defunding’, the police are clearly relevant here.

  93. See R A Duff, ‘Penal Communications’ (1996) 20 Crime and Justice 1, at 68–9.

  94. Compare A J Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225.

  95. And see Realm, 5, 224.

  96. No secondary ‘rules of adjudication’: see H L A Hart, The Concept of Law (2nd edn; Oxford University Press, 1994), 96–8.

  97. See Realm, 15, 36–7.

  98. See s. 3 above.

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This is a response to ten critiques of my book, drafts of which were discussed at a workshop at Rutgers: I am very grateful to Alec Walen and Doug Husak for organising that workshop and this symposium; to the critics to whose papers I respond here; and to all the participants in that enjoyably challenging workshop.

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Duff, R.A. Defending the Realm of Criminal Law. Criminal Law, Philosophy 14, 465–500 (2020). https://doi.org/10.1007/s11572-020-09548-3

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