R. A. Duff

We can usefully distinguish the conditions of criminal liability (those conditions which must be satisfied if a defendant is to be duly convicted, with which a criminal trial is concerned) from its preconditions (those conditions which must be satisfied if the trial, as a process which aims to determine whether or not this person is criminally liable, is to be legitimate at all). Some of these preconditions concern the defendant's status as a rsponsible citizen, who can properly be called to answer, at the trial, to a charge of criminal wrongdoing. Two such preconditions are briefly sketched (whether this person is capable of answering the charge, and is answerable before this court). More attention is devoted to a third precondition: whether the law calls this person to answer in a language which is genuinely accessible to him, as a language which he could use in the first person

We can gain fresh insights into aspects of criminal liability by focusing first on the prior topic of criminal responsibility, and on the relational dimensions of responsibility: responsibility is responsibility for something, to someone. We are criminally responsible as citizens, to our fellow citizens, for committing 'public' wrongs: I discuss the difficulty of giving determinate content to this idea of public wrongs, and the way in which, whereas moral responsibility is typically strict, criminal responsibility is not. Finally, I explore the grounds on which defendants might deny that they are criminally responsible before the courts that seek to try them.

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

This collection of original essays, by some of the best known contemporary criminal law theorists, tackles a range of issues about the criminal law's 'special part' - the part of the criminal law that defines specific offences. One of its aims is to show the importance, for theory as well as for practice, of focusing on the special part as well as on the general part which usually receives much more theoretical attention. Some of the issues covered concern the proper scope of the criminal law, for example how far should it include offences of possession, or endangerment? If it should punish only wrongful conduct, how can it justly include so-called 'mala prohibita', which are often said to involve conduct that is not wrongful prior to its legal prohibition? Other issues concern the ways in which crimes should be classified. Can we make plausible sense, for instance, of the orthodox distinction between crimes of basic and general intent? Should domestic violence be defined as a distinct offence, distinguished from other kinds of personal violence? Also examined are the ways in which specific offences should be defined, to what extent those definitions should identify distinctive types of wrongs, and the light that such definitional questions throw on the grounds and structures of criminal liability. Such issues are discussed in relation not only to such crimes as murder, rape, theft and other property offences, but also in relation to offences such as bribery, endangerment and possession that have not traditionally been subjects for in depth theoretical analysis.

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 ..

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.

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. 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

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.