S. E. Marshall

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

Bodyshopping: The Case of Prostitution

Some have argued that a proper account of prostitution shows it to be a morally neutral, commercial service ‘like any other’. This paper explores further the implications of this ‘service’ model and argues that it depends upon a weak conception of the kind of sex involved in such a practice and involves the objectification of both prostitute and customer. I argue that there is a moral view of sex which is not merely ‘romantic’, from which it is still possible to view prostitution as morally objectionable; but that, nevertheless, this perspective itself may provide for a development of the idea of a service which would justify a limited practice of prostitution. Such a practice would, however, be very different from that which supporters of the putatively morally neutral model of prostitution have in mind and would depend for its plausibility on a comparison with other forms of caring for which payment is given.

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.