R. A. Duff

Trials and punishments

Preface Introduction 1. On being fit to be tried and punished 2. Criticism, blame and moral punishment 3. The laws demands 4. Trial and verdict 5. Trial and punishment 6. Consequentialist punishments 7. Varieties of retributivitism 8. Punishment, fairness and rights 9. Expression, penance and reform 10. The ideal and the actual Bibliography Indices.

Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law

The book (originally published in 1990, now out of print, but occasionally still requested) aims to introduce law students to some of the philosophical dimensions of their subject, and to show philosophy students (in particular students of moral philosophy and philosophy of action) how attention to topics in criminal law theory can illuminate their subjects. It discusses a range of issues concerning concepts of action and their bearing on criminal liability: in particular, actus reus and mens rea; the meaning and legal significance of intention; recklessness; action; criminal attempts; responsibility.

The boundaries of the criminal law

1. Introduction: The Boundaries of the Criminal Law 2. Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration 3. Preventative Orders: A Problem of Undercriminalization? 4. Perversions and Subversions of Criminal Law 5. Proactive Forensic Profiling: Proactive Criminalization? 6. Horrific Crime 7. Criminalization and Regulation 8. Criminal Law between Public and Private Law 9. Criminal Wrongs in Historical Perspective 10. Theories of Criminalization and the Limits of Criminal Law: a Legal Cultural Approach

A criminal law for citizens

Rather than appealing to penal parsimony as a constraint on the otherwise insatiable demands of the criminal justice system, we should develop a positive account of the proper aims of criminal law which shows parsimony, or moderation, to be integral to those aims. We can do this by developing a republican conception of criminal law as a law that citizens impose on themselves: such a law will be modest in its scope, and will provide a criminal process of trial and punishment that addresses those subjected to it with the respect due to them as citizens.

Crime, Prohibition, and Punishment

Nigel Walker’s first principle of criminalization declares that ‘Prohibitions should not be included in the criminal law for the sole purpose of ensuring that breaches of them are visited with retributive punishment’. I argue that we should reject this principle, for ‘mala prohibita’ as well as for ‘mala in se’: conduct should be criminalized in order to ensure (as far as we reasonably can) that those who engage in it receive retributive punishment. In the course of the argument, I show why we should not see the criminal law as consisting in ‘prohibitions’; I explain different species of mala prohibita, and show how their commission does involve genuine wrongdoing; and I show the importance of distinguishing the question of regulation from that of sanction.

Who Must Presume Whom to Be Innocent of What

This paper considers the roles that may be played by a “presumption of innocence” outside the criminal trial — a presumption that reflects a general principle of civic trust. We can understand the significance of this presumption, and the ways in which it can be qualified (without being defeated) by attending to some of the normative roles that citizens might take on, or have imposed on them, in relation to the criminal law, and the responsibilities or duties that attach to those roles. Particular attention is paid to the distinctive roles of “defendant” and of “ex-offender”, and to the question of whether it can be consistent with the presumption of innocence to treat either defendants or those who have completed their punishments as, if not guilty, at least far from unqualifiedly innocent.

Penance, Punishment and the Limits of Community

The thought that religious ideas could have any place in a normative theory of criminal punishment will be anathema to many liberals. I argue, however, that we can understand criminal punishment as a species of secular penance, as part of a communicative enterprise in which the polity seeks to involve its citizens. After explaining what a penance amounts to in this context, I meet the liberal objection that punishment as thus conceived would be an oppressive and illegitimate intrusion into the realm of moral character and conscience which is not the states, or the laws, business. Finally, I raise (without offering any confident answer to) the question of whether there are any kinds of crime that are so destructive of the very possibility of political community that punishment as communicative penance is no longer morally possible, and focus in particular on the version of this question that is raised by terrorist crimes.

The Limits of Virtue Jurisprudence

In response to Lawrence Solums advocacy of a ‘virtue–centred theory of judging’, I argue that there is indeed important work to be done in identifying and characterising those qualities of character that constitute judicial virtues – those qualities that a person needs if she is to judge well (though I criticise Solums account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solums more ambitious claims – that a judges vice necessarily corrupts her decisions, and that in at least some contexts we must define a legally correct decision as one that would be reached by a virtuous judge – should be rejected: we can undermine the former by attending to the requirements of due process, and the latter by attending to the ways in which a judge would try to justify her decision.

The constitution of the criminal law

R.A. Duff and John Gardner have recently suggested that responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the agent in order to justify her conduct. However, this idea is formulated in very different ways by the two. Gardner’s account is “non-relational” in that it assumes that all moral reasons ultimately apply to every moral agent and that “everyone’s conformity to every reason is everyone’s business”. This means that, although there are obvious pragmatic reasons to limit the practice of calling each other to account, in principle we are answerable to everyone for everything. The model defended by Duff, on the other hand, is relational in that it ties the right to call someone to account to the existence of relevant normative relationships between members of specific groups. In particular, Duff ties criminal responsibility to membership in the political community: being criminally responsible is being answerable to our fellow citizens for those wrongs that violate the fundamental values of the political community. While espousing the relational model defended by Duff, I suggest that there is a class of wrongs, namely violations of basic human rights, for which we are answerable not only to our fellow citizens, but also to all human beings. This is because while we can account for the wrongness of crimes such as theft or tax evasion simply by appealing to Duff’s thought that these crimes violate the fundamental values of the political community, the wrongness of crimes such as murder or rape cannot be reduced to that. We are certainly answerable for these crimes to our fellow citizens because to the extent that our polity declares them as public wrongs, in perpetrating them we fail to treat the victim with the respect owed to her as a fellow citizen. But we are also answerable for them to the whole of humanity because in committing them we also fail to treat the victim with the respect owed to her as a fellow human being.

Inclusion, Exclusion and the Criminal Law

The first section of this article clarifies the concepts of social inclusion and exclusion: three important features are that exclusion and inclusion are normative, not purely factual matters; that they involve agency, either active or passive (exclusion involves someone who either actively excludes or passively fails to include); and that the judgement that someone has been excluded depends on a view of the responsibilities of the supposed excluder. The next section then examines some of the ways in which the criminal law can serve as an instrument of exclusion or of inclusion: in virtue of its content; in the way in which it is enforced; through the criminal process, and in particular the criminal trial; and through the punishments imposed on offenders. However, the possibility of a genuinely inclusionary criminal law depends on the justice of the political and social structures that underpin it: if offenders have not been treated inclusively, as full citizens of the polity, the politys right to call them to account for their wrongdoings through the criminal law is undermined. The conclusion is that the concepts of social inclusion and exclusion can play a useful role in a critical analysis of our political and legal institutions and practices, but that the ideal of an inclusive political community presents both governments and citizens with a demanding challenge.