R. A. Duff

The question "What can justify criminal punishment?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices.

The slogan that criminal liability requires an ‘act’, or a ‘voluntary act’, is still something of a commonplace in textbooks of criminal law. There are, it is usually added, certain exceptions to this requirement— cases in which liability is in fact, and perhaps even properly, imposed in the absence of such an act: but the ‘act requirement’ is taken to represent a normally minimal necessary condition of criminal liability. Even offences of strict liability, for which no mens rea is required, require an act: thus to the familiar slogan that actus non facit reum nisi metis sit rea we can add the prior, more fundamental slogan that mens non facit reum nisi actus sit reus ; before we ask whether a defendant acted with mens rea or fault, we must ask whether he committed a criminal act at all.

Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different kinds of crime.

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.

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.

First paragraph: The awesome range of Heike Jung’s work—over different aspects of criminal law, different jurisdictions and traditions, different disciplines and languages—makes life both easier and harder for contributors to his Festschrift: easier, because one can choose almost any criminal law topic and be confident that it will connect to his work; harder (for those with the British vices of monolingualism and intellectual parochialism), since one’s paper will display the linguistic, jurisdictional or intellectual limitations that Heike Jung’s work so impressively transcends. In an attempt to overcome some of those limitations, I will discuss a topic that concerns criminal trials and the scope of the criminal law, through the distinction between crimes (Straftaten) and ‘regulatory offences’ (Ordnungswidrigkeiten) which is more often formally drawn in Germany and other continental European systems than in English law.

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable.

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 (to call her to account for her wrongdoing). 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.

Common lawyers are accustomed to the presumption of innocence being described as a “golden thread” running “[t]hroughout the web” of the criminal law: “that it is the duty of the prosecution to prove the prisoner’s guilt” (Woolmington v DPP [1935] AC 462 per Viscount Sankey LC at 481). But although the language of “golden thread” is memorable and oft-quoted, the presumption of innocence must mean more than this: it is not simply a restatement of the burden of proof in a criminal trial.Once this simple point is recognised, a whole host of more complex questions arise. For example: what, precisely, is the scope of the principle? Is this a matter on which consensus is possible or desirable? What role does the presumption have to play in pre-trial proceedings, in decisions by prosecutors? Does the presumption have consequences for the substantive criminal law, or can legislators blunt its impact by defining criminal offences so as to deprive the presumption of its bite? Can legislators tr.

Ideas of prevention (the prevention of harms, or of wrongs, or of crimes) have always played a significant role in accounts of the proper aims of a system of criminal law, but in recent years they have come to play a more prominent and disturbing part in developments in criminal law policies—most obviously, but by no means only, in the USA and Britain. Governments have sought to meet (or to be seen to be meeting) a range of perceived threats, such as terrorism, organised crime, and various kinds of sexual predation, by looking for more effective modes of prevention. Sometimes this involves expanding the criminal law to capture more types of preparatory conduct, or conduct (including various kinds of possession) that might facilitate the commission of target crimes; sometimes it involves expanding non-criminal provisions for preventive detention, or other kinds of restriction on the liberty of those thought to be dangerous (restrictions that may themselves be backed by criminal sanctio.

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account.

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy.

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.