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Is Criminal Law ‘Exceptional’?

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Notes

  1. For more detail, see Antony Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018).

  2. Remembering that criminalisation is a matter not merely of formal legislation, but of what is criminalised in action by the law’s officials.

  3. See Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial (London: Hart Publishing, 2007).

  4. Criminal law institutions also impose other burdens—those involved in law enforcement and crime prevention, those imposed by the criminal process.

  5. Indeed, on some libertarian views a taxation system that takes 20% of my income requires me to work unpaid for 20% of my employed time.

  6. Vincent Chiao, “What is the Criminal Law For?”, Law and Philosophy 35 (2016): 137, p. 139.

  7. We put ‘morally’ in scare quotes to mark the problematic character of that term: we do not mean to suggest that criminal law is concerned with ‘moral’ responsibility as something that could be understood pre-politically.

  8. See generally James Goudkamp, Tort Law Defences (Oxford: Hart Publishing, 2013).

  9. The qualification ‘in many polities’ is necessary because such claims about the actual operation of criminal law must be contingent and (relatively) local; our examples reflect American and English criminal justice.

  10. See David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law (Oxford: Oxford University Press, 15th edn. 2018), pp. 212–18.

  11. See e.g. Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton: Princeton University Press, 2018).

  12. Compare Vincent Chiao, Criminal Law in the Age of the Administrative State (Oxford: Oxford University Press, 2018).

  13. A more radical response of this kind is abolitionist: even if the values embodied in the classical conception are worth our allegiance (which might be denied), criminal law cannot serve them; it should be abolished rather than reformed. We cannot discuss this possibility, or the different forms of ‘abolitionism’, here.

  14. See e.g. Alan Norrie, Punishment, Responsibility, and Justice (Oxford: Oxford University Press, 2000).

  15. See e.g. Nicola Lacey and Hanna Pickard, “To Blame or to Forgive? Reconciling Punishment and Forgiveness in Criminal Justice”, Oxford Journal of Legal Studies 35(4) (2015): 665.

  16. Matt Matravers, this issue.

  17. Javier Wilenmann, this issue.

  18. Matravers, this issue.

  19. Compare Francesco Viganò, this issue.

  20. Viganò describes them as assumptions about criminal law’s ‘exceptional’ character, as ‘being governed by special—indeed, unique—principles, different from those underlying the remaining parts of the legal system’ (this issue). It is not clear, however, whether the classical assumptions involved ‘unique’ principles; they might instead concern the distinctive implications of general principles of legitimacy and constitutional constraint when applied to the distinctive practice of criminal law.

  21. Viganò, this issue, (emphasis added): but even his ‘perhaps’ is heavily qualified (‘at least, the standard doctrinal opinion used to assume’ that criminal law was in these ways distinctive).

  22. Compare Andrew Ashworth and Lucia Zedner, “Preventive Orders: A Problem of Under-Criminalization?”, in R. A. Duff and others (eds.), The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010, 59).

  23. Rocío Lorca, this issue.

  24. Compare Chiao, n. 12 above.

  25. But even if the goal is valuable, and criminal law is necessary to it, we must ask whether it is valuable enough to justify the costs of maintaining a system of criminal law.

  26. See Alice Ristroph, this issue; Christoph Burchard, this issue.

  27. Compare Ristroph, this issue, on ‘the subconscious operation of exceptionalist bias’.

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  1. University of Stirling, Stirling, FK9 4LA, UK

    R. A. Duff & S. E. Marshall

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Duff, R.A., Marshall, S.E. Is Criminal Law ‘Exceptional’?. Criminal Law, Philosophy 17, 39–48 (2023). https://doi.org/10.1007/s11572-021-09619-z

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