R. A. Duff

It is a common view that citizens’ relationship to the law of their political community is a matter of obedience—or disobedience: the law seeks our obedience, and a central question for political-legal philosophy is then whether we have a general obligation to obey the law. Such a view is particularly evident in relation to criminal law, which is often seen as consisting in prohibitions that citizens are required to obey. This paper argues that a polity that sought only obedience to its laws would foster a distinctive kind of vice in its citizens—the vice of servility (or the opposite vice of defiance). This suggestion will be explained and substantiated by paying particular attention to the criminal law, and by discussing three contrasts: between respect and servility; between abidance and obedience; and between responsibilization and infantilization. The argument is grounded in a (roughly) republican conception of a democratic polity in which citizens are agents, not merely subjects, of a law that is their law.

Drawing on Gary Watson’s seminal work on responsibility, this chapter focuses on what he calls accountability. It distinguishes (in section 8.1), answerability from liability, and then concentrates on answerability, which operates, it argues (contra David Shoemaker), analogously in both moral and legal contexts. It discusses (in section 8.2) the way in which answerability requires us to attend to the capacities of the person whom we hold responsible, not just at the time of the conduct for which he is now being held responsible, but at the time of the holding. In section 8.3, it then attends to some implications of the requirement that when we hold someone answerable, we must be ready to listen to their answer. Finally, in section 8.4, it tackles the issue of standing: what gives us the right to call another person to account; and what can undermine that standing—with what implications?

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.

Taking as its starting point Miri Gur-Arye’s critical discussion of a legal duty to report crime, this paper sketches an idealising conception of a democratic republic whose citizens could be expected to recognise a civic responsibility to report crime, in order to assist the enterprise of a criminal law that is their common law. After explaining why they should recognise such a responsibility, what its scope should be, and how it should be exercised, and noting that that civic responsibility must include a responsibility to report one’s own crimes; it discusses whether that civic responsibility could ground at least a limited legal duty to report certain types of crime. It then turns to the question of whether a civic responsibility to assist the criminal law’s enterprise of bringing wrongdoers to account could include a responsibility to arrest suspected or known offenders if the police cannot or will not do so—a responsibility to make a citizen’s arrest, and the legal power to discharge that responsibility: how far should citizens feel entitled, or duty-bound, thus to ‘take the law into their own hands’?