Abstract
In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests (non-citizens). I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be (active personality) and over harm to its citizens/interests wherever in the world the attacks occur (passive personality).
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Notes
All numbers in parenthesis refer to R.A. Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018).
See generally Michael S. Moore, “A Tale of Two Theories,” Criminal Justice Ethics 28 (2009): 27–48.
Cedric Ryngaert, Jurisdiction in International Law 2d ed. (Oxford: Oxford University Press 2015): ch. 4.
E.g., Lucia Zedner, “Is the Criminal Law only for Citizens? A Problem with the Borders of Punishment,” in Katja Franko Aas and Mary Bosworth (eds.), The Borders of Punishment: Migration, Citizenship, and Social Exclusion (Oxford: Oxford University Press, 2013): 40.
R.A. Duff, “Responsibility, Citizenship and Criminal Law,” in R.A. Duff and Stuart P. Green (eds.), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press 2011): 125, 136.
Id.
Id. at 136–137.
Id. at 137.
As Duff acknowledges:
Within the territory of any modern polity there will be a large number of non-citizens: people who are in the territory as, for instance, tourists, or short-term business visitors; or who entered for a longer period as workers, or to join family members; or who made their lives and homes in the polity, although they have not been granted, or perhaps have not sought, citizenship; or who have entered as refugees, as asylum seekers, or as would-be immigrants (legally or non-legally). (120)
As Duff explains:
The wrong committed by one who criminally attacks a visitor or a guest is just the same wrong—of murder, or rape, or assault—as it is if the victim is a citizen; what makes it the business of this polity’s criminal law is that it committed with the polity’s territority—within its civic home. If we invite or allow someone into our home, any wrongs committed against them while they are there become our business: not because only then should we recognize them as wrongs (we do not deny they are wrongs when they are committed elsewhere), but because only then are they our business as hosts. The location of the wrong, as being committed within the polity, bears not on its character are a wrong, but on whether the polity has the standing to define it as a wrong that is ‘our’ business, and to call its perpetrator to public account. Its location is a condition, rather than part of the object, of criminal liability. (123)
Ryngaert, Jurisdiction in International Law, pp. 101, 104.
Id. at 110. “It is unclear whether the nationality of the victim, which certainly constitutes a legitimate interest of the State, also constitutes a sufficient jurisdictional link under international law. It is quite likely, the most aggressive basis for extraterritorial jurisdiction….”
Id. at 114.
For a call to expand the American use of active personality for this reason, see Geoffrey R. Watson, “Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction,” Yale Journal of International Law (1992): 41–84.
Ryngaert, Jurisdiction in International Law, p. 102.
These sorts of difficulties appear in tax law. See Ruth Mason, “Citizenship Taxation,” Southern California Law Review 89 (2016): 169–239.
To be sure, Moore’s prima facie jurisdictional reach extends beyond Duff’s, even as I have expanded its grasp.
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Ferzan, K.K. The Reach of the Realm. Criminal Law, Philosophy 14, 335–345 (2020). https://doi.org/10.1007/s11572-020-09541-w
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DOI: https://doi.org/10.1007/s11572-020-09541-w