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Liberalism and the Changing Character of the Criminal Law: Response to Ashworth and Zedner

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Notes

  1. Ashworth and Zedner (2007), subheading ‘Introduction’.

  2. This way of thinking will, of course, have impacts in other areas of social policy (e.g. social work, housing, taxation) as well as criminal law.

  3. For a picture consonant with this view, see Duff (2001).

  4. Wiggins (2006), chapter 10. Kant has also been accused of an excessively algorithmic view of justice and of morality in general; for rebuttals of this charge see, e.g., O’Neill (1989), chapter 8.

  5. See Rawls’s restriction of the scope of his principles of justice to ‘the basic structure’, and his famous exposition of just two or (depending on how one counts them) three principles of justice that should be applied to this ‘basic structure’ (Rawls 1971), at, e.g., pp. 7–11, 60–65.

  6. For a related discussion, see O’Neill (2002).

  7. See, for example, Duff’s liberal communitarianism or Wiggins’s liberal neo-Aristotelianism (Duff 2001; Wiggins 2006).

  8. Ashworth and Zedner (2007), subheading ‘Liberal values and the criminal law’.

  9. Ashworth and Zedner (2007), subheading ‘Greater use of hybrid civil-criminal processes’.

  10. The UK media cites many examples of ASBOs imposed for behaviour which, arguably, should not be restricted by the state at all. See, for example, the discussion at www.bbc.co.uk/pressoffice/pressreleases/stories/2005/01_january/09/inside_out_asbo.shtml, which mentions ASBOs imposed for ‘criminal damage and throwing eggs and snowballs’. While the former (criminal damage) is independently criminal and could be punished without an ASBO (see §2 below), snowballs should normally be endured by liberals, or perhaps in certain cases tackled by non-state sanctions (see §3 below)––unless the snowballing is so severe that it qualifies as (e.g.) an assault, in which case it will again already be covered by the criminal law.

  11. Ashworth and Zedner (2007), subheading ‘Liberal values and the criminal law’, last alinea.

  12. Ashworth and Zedner (2007), subheading ‘The authoritarian state’, last alinea.

  13. Ashworth and Zedner (2007), subheading ‘Greater use of strict liability’.

  14. Ashworth and Zedner (2007), subheading ‘Greater use of strict liability’.

  15. Kramer (2005), p. 331. The debates about ‘moral luck’ are obviously relevant here (see, e.g., Williams 1981, chapter 2).

  16. Less serious wrongs should not be criminalised; for suggestions on how to handle these, see §3 below.

  17. Ashworth and Zedner (2007), subheading ‘Liberal values and the criminal law’.

  18. Many thanks to participants at the British Academy’s symposium, Why Criminal Law? (13 January 2007). Special thanks are owed to Andrew Ashworth and Lucia Zedner for their excellent paper, and to Antony Duff and especially to Claire Grant, for organising the symposium and for very useful comments.

References

  • Ashworth, A. & Zedner, L. (2007). Defending the criminal law: Reflections on the changing character of crime, procedure, and sanctions. Criminal Law and Philosophy, doi: 10.1007/s11572-007-9033-2.

  • Duff, R. A. (2001). Punishment, communication and community. Oxford: Oxford University Press.

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  • Kramer, M. H. (2005). Moral rights and the limits of the ought-implies-can principle: why impeccable precautions are no excuse. Inquiry, 48(4), 307–355.

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  • O’Neill, O. (1989). Constructions of reason: Explorations of Kant’s practical philosophy. Cambridge: Cambridge University Press.

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  • O’Neill, O. (2002). A question of trust. Cambridge: Cambridge University Press.

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  • Rawls, J. (1971). A theory of justice. Oxford: Oxford University Press.

  • Wiggins, D. (2006). Ethics: Twelve lectures on the philosophy of morality. Penguin.

  • Williams, B. (1981). Moral luck. Cambridge: Cambridge University Press.

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  1. Department of Philosophy, University of Stirling, Stirling, FK9 4LA, Scotland

    Rowan Cruft

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Cruft, R. Liberalism and the Changing Character of the Criminal Law: Response to Ashworth and Zedner. Criminal Law, Philosophy 2, 59–65 (2008). https://doi.org/10.1007/s11572-007-9034-1

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