Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

I begin by discussing the ways in which a would-be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her. This provides the basis for an examination of a particular kind of 'bar to trial' in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the state or its officials. The examination of this (...) often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

We can gain fresh insights into aspects of criminal liability by focusing first on the prior topic of criminal responsibility, and on the relational dimensions of responsibility: responsibility is responsibility for something, to someone. We are criminally responsible as citizens, to our fellow citizens, for committing 'public' wrongs: I discuss the difficulty of giving determinate content to this idea of public wrongs, and the way in which, whereas moral responsibility is typically strict, criminal responsibility is not. Finally, I explore the (...) grounds on which defendants might deny that they are criminally responsible before the courts that seek to try them. (shrink)

This book examines responsibility and luck as these issues arise in tort law, criminal law, and distributive justice. The central question is: whose bad luck is a particular piece of misfortune? Arthur Ripstein argues that there is a general set of principles to be found that clarifies responsibility in those cases where luck is most obviously an issue: accidents, mistakes, emergencies, and failed attempts at crime. In revealing how the problems that arise in tort and criminal law as well as (...) distributive justice invite structurally parallel solutions, the author also shows the deep connection between individual responsibility and social equality. This is a challenging and provocative book that will be of special interest to moral and political philosophers, legal theorists, and political scientists. (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...) D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

Marcia Baron has offered an illuminating and fruitful discussion of extra-legal excuses. What is particularly useful, and particularly important, is her focus on our excusatory practices—on the ways and contexts in which we make, offer, accept, bestow and reject excuses: if we are to reach an adequate understanding of excuses, their implications and their grounds, we must attend to the roles that they can play in our human activities and relationships—and to the complexities and particularities of those roles. However, I (...) want to focus my comments less on the details of Baron’s discussions of excuses in extra-legal contexts than on the implications of her discussion for our understanding of excuses in the criminal law. What light (if any, a sceptic might add) can such analyses of our extra-legal concepts and practices throw on legal concepts and doctrines? (shrink)

I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an advertent risk-taker. We can (...) work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention from negligence. Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema. (shrink)

The fourth volume in the Criminalization series, this volume explores some of the most general principles and theories of criminalization. It includes not only philosophical work, but also historical, legal, and sociological investigations into criminalization, clarifying the state of the discipline today.

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)

This collection of original essays, by some of the best known contemporary criminal law theorists, tackles a range of issues about the criminal law's 'special part' - the part of the criminal law that defines specific offences. One of its aims is to show the importance, for theory as well as for practice, of focusing on the special part as well as on the general part which usually receives much more theoretical attention. Some of the issues covered concern the proper (...) scope of the criminal law, for example how far should it include offences of possession, or endangerment? If it should punish only wrongful conduct, how can it justly include so-called 'mala prohibita', which are often said to involve conduct that is not wrongful prior to its legal prohibition? Other issues concern the ways in which crimes should be classified. Can we make plausible sense, for instance, of the orthodox distinction between crimes of basic and general intent? Should domestic violence be defined as a distinct offence, distinguished from other kinds of personal violence? Also examined are the ways in which specific offences should be defined, to what extent those definitions should identify distinctive types of wrongs, and the light that such definitional questions throw on the grounds and structures of criminal liability. Such issues are discussed in relation not only to such crimes as murder, rape, theft and other property offences, but also in relation to offences such as bribery, endangerment and possession that have not traditionally been subjects for in depth theoretical analysis. (shrink)

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This pattern (...) of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin.. (shrink)

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have (...) pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

First paragraph: Some reasons for action are relational. I have a relational reason to Φ when I have reason to Φ in virtue of a relationship in which I stand, or a role that I fill; absent that relationship or that role I would not have that reason to Φ ; others who do not stand in that relationship or fill that role do not have that reason to Φ . I have a relational reason to feed this child -- (...) that he is my child: absent that parental relationship, I might still have a reason to feed him, as might others who are not his parents -- for instance that he is starving; but absent that relationship, I would not have and others cannot have that specific relational reason to feed this child. I have a relational reason to respond to this person's philosophical queries -- that she is my student: absent that pedagogical relationship, I might still have reason to respond to her questions, as might others who are not her teachers -- for instance that it is good to help such seekers after philosophical insight; but absent that relationship, I would not have and others cannot have that specific relational reason to respond to her queries. I have relational reason to pay John ￡10 -- that I borrowed it from him and promised to repay him today: absent that promissory relationship I might still have, and others might have, reason to give him ￡10 -- for instance that he is impoverished and I am (or they are) rich; but absent that promissory relationship, neither I nor others could have that specific relational reason to give him ￡10. (shrink)

The idea that crimes can usefully be understood as ‘public wrongs’, and that this can generate a plausible principle of criminalisation, has found some support in recent years; it has also been subjected to some sharp criticism. This paper aims to sketch the most plausible version of that idea, and to show how, once properly explained, it is not vulnerable to those criticisms. After a brief defence of the negative principle, that we may not criminalise conduct that does not constitute (...) a public wrong, it explains the positive principle, that we have reason to criminalise conduct if it constitutes a public wrong, by drawing an analogy between criminal law and codes of professional ethics, and by appealing to the idea of civil order, as the normative structure of a polity—a structure that criminal law helps both to constitute and to sustain. Four objections are then met: that this account implies an unacceptable relativism; that it distorts the reasons that bear on criminalisation; that it cannot make room for those who do not identify themselves with the polity in which they live; and that it implies an unrealistically demanding conception of what is required for a polity to exist. (shrink)

The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally how the criminal law can be constituted as part of the international order.

This paper offers some further support to Sarah Summers’ argument, in «The Epistemic Ambitions of the Criminal Trial: Truth, Proof, and Rights», that we cannot separate process from outcome in the criminal trial—that the justification and legitimacy of the verdict (especially of a conviction) depends crucially on the procedure through which it was reached. Intuitive support for this view is found by considering the case of a guilty person who is convicted after a trial that denied him the opportunity or (...) means for «effective participation»; further support is found in the provisions made for those who are «unfit to plead», those who lack the capacities necessary for effective participation in their trial. A firmer grounding for this view is then found in a theory of the criminal trial as a process through which alleged public wrongdoers are called to account—a process in which they should be active participants. (shrink)

Discussions of responsibility typically focus on the person who is held responsible: what are the conditions or criteria of responsibility; what can be done to or demanded of a person who is responsible? This paper shifts focus onto those who hold, rather than those who are held, responsible: what do we owe to those whom we hold responsible? After distinguishing responsibility as answerability from responsibility as liability, it attends mainly to the former, and points out the ways in which it (...) is multiply relational: I am responsible for something to someone who has the standing to call me to account for it, under the norms of some particular practice. Responsibility as thus understood is also reciprocal: if you are to be answerable to me, I must treat you with a certain respect, attend seriously to your answer, and be ready to answer to you myself. The paper explores some of the implications of this point both for our moral dealings with each other, and for criminal law and the criminal trial. (shrink)

This chapter argues that the kind of responsibility that we must have, if the enterprise of criminal law and punishment is to be consistent with the demands of justice, is something much more modest, much less metaphysically ambitious, than the ‘ultimate’ responsibility that Strawson so persuasively denies in Chapter 8. If we are to be clear about the kind of responsibility that is relevant to criminal law, we must first be clear about the criminal law itself — about the kind (...) of enterprise that it is, about the aims that it should serve, about the principles that should structure it, and about the conditions it demands of us. (shrink)

A critical discussion of Victor Tadros, The Ends of Harm.

A critical discussion of Gideon Yaffe's "guiding commitment" account of attempts, with special reference to attempts in the criminal law.