R. A. Duff

I argue that hanink's account of the principle of double effect ("some light on double effect," "analysis", volume 35, number 5) is inadequate, and rests on the mistaken assumption that the criteria for distinguishing acts from each other, intention from foresight, acting from refraining, can be specified independently of any moral perspective. i try to indicate the way to a better understanding of these distinctions, and the essential features of the kind of absolutist morality which invokes them--its concern with "agency", with "transcendent values", and with "limits" on human action. i illustrate these points by a brief discussion of suicide.

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.

First paragraph: Dangerous driving attracts a maximum penalty of a heavy fine, or in the most serious cases up to six months’ imprisonment; but if it causes death, the maximum penalty is fourteen years’ imprisonment. Careless driving attracts a maximum penalty of a level 4 fine; driving whilst under the influence of drink or drugs attracts a maximum penalty of a level 5 fine and/or up to six months’ imprisonment: but if someone causes death by careless driving when under the influence of drink or drugs, the maximum penalty is again fourteen years’ imprisonment, and for causing death by careless driving it is five years’ imprisonment. Driving when unlicensed, uninsured or disqualified attracts maximum penalties of, respectively, a level 3 fine, a level 5 fine, and a level 5 fine and/ or six months’ imprisonment; but an unlicensed, uninsured or disqualified driver who causes death faces a maximum penalty of two years’ imprisonment.2 The difference between causing and not causing death in such cases might be purely a matter of luck; we therefore face the familiar question of whether and how it can be consistent with the demands of penal justice to allow ‘outcome luck’ to make such a dramatic difference to an offender’s criminal liability.

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.

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.

Five pre-eminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, reflecting deeper political and social conflicts. The volume as a whole shows how lively and exciting contemporary legal theory can be.

The original versions of the five papers in this Symposium were delivered and discussed at a workshop at the University of Minnesota Law School on Criminal Responsibility and its History. One of the aims of the workshop was to bring together scholars working on the history of the criminal law and scholars whose main focus is on issues in normative criminal law theory, to explore the ways in which they can learn from each other, and to promote a kind of dialogue between historical and normative theorising that is still too rare. Elizabeth Kamali’s exploration of the idea of felony in early English law, and Thomas A Green’s work on the Anglo-American jury, remind us of the importance of looking at the history of our contemporary institutions and concepts: we can understand the law that we now have only by attending to continuities and discontinuities in thought and practice that have marked its long, complex political and social history. Informed by the institutional and conceptual fram..