R. A. Duff

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.

Marcia Baron has offered an illuminating and fruitful discussion of extra-legal excuses. What is particularly useful, and particularly important, is her focus on our excusatory practices—on the ways and contexts in which we make, offer, accept, bestow and reject excuses: if we are to reach an adequate understanding of excuses, their implications and their grounds, we must attend to the roles that they can play in our human activities and relationships—and to the complexities and particularities of those roles. However, I want to focus my comments less on the details of Baron’s discussions of excuses in extra-legal contexts than on the implications of her discussion for our understanding of excuses in the criminal law. What light (if any, a sceptic might add) can such analyses of our extra-legal concepts and practices throw on legal concepts and doctrines?

Nigel Walker’s first principle of criminalization declares that ‘Prohibitions should not be included in the criminal law for the sole purpose of ensuring that breaches of them are visited with retributive punishment’. I argue that we should reject this principle, for ‘mala prohibita’ as well as for ‘mala in se’: conduct should be criminalized in order to ensure (as far as we reasonably can) that those who engage in it receive retributive punishment. In the course of the argument, I show why we should not see the criminal law as consisting in ‘prohibitions’; I explain different species of mala prohibita, and show how their commission does involve genuine wrongdoing; and I show the importance of distinguishing the question of regulation from that of sanction.

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.

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

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

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.

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.

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