R. A. Duff

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..

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.

First paragraph: It is worth distinguishing two kinds of role that ideas of virtue and vice might play in the criminal law (or in our theoretical understanding of the criminal law). Each kind admits of a range of variations; each can be more or less ambitious in scope and aim: but although there are of course quite close connections between the two kinds, we can usefully sketch them as two different ways of developing a virtue jurisprudence of criminal law. Both kinds of role are connected to views of the proper aims of a system of criminal law: in the first case, a view of the further goods that criminal law should aim to achieve; in the second case, a view of the proper objects of criminal liability.

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation.

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This pattern of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin..

abstract Focusing on the criminal law, I discuss three ways in which analytical philosophers might contribute to the development or health of the law (and of legal theory). The first is as humble under-labourers, who seek only to clarify legal rules and doctrines, but not to criticise them. This modest conception of the role of philosophy, however, proves to be untenable: clarification must become rational reconstruction — an attempt to make rational sense of the law; and rational reconstruction must involve at least an internal critique, which appraises the law in terms of ends, values or principles that the reconstruction discovers within the law. Such an internal critique must then also point beyond itself, to an external critique that appraises law in terms of the broader and deeper political and moral values by which states should be structured; the paper ends by noting some of the problems that such an external critique faces, and some of the problems that philosophers must face in trying to engage with the world of public policy.

In response to Lawrence Solum's 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 Solum's account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solum's more ambitious claims – that a judge's 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.