Answering for Crime: Responsibility and Liability in the Criminal Law (Legal Theory Today)

343 Pages·2007·2.34 MB·English

by  Antony Duff

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Legal Theory Today
Answering for Crime
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Legal Theory Today
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Answering for Crime
Responsibility and Liability in the
Criminal Law
R A Duff
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Acknowledgements
Much of the work on this book was done during my tenure of a
Leverhulme Major Research Fellowship: I am very grateful to the Lever-
hulmeTrustforthisaward,whichgavemethreeinvaluableyearsfreefrom
teaching and administration in which to think again about some of the
questionsonwhichIhadbeenworkingforanumberof years,andtomake
effectively a fresh start. I am also grateful to the University of Stirling for
the support I have received, not just during the writing of this book, but
throughout my academic career; and especially to my colleagues in the
Departmentof Philosophy,who(apartfromofferinghelpfulcommentson
many aspects of the book) have through the years provided an ideally
collegial, friendly, enthusiastic and constructively critical environment in
which to pursue research.
Ialsoowedebtstomanyothergroupsandindividuals(andapologiesto
any whose help I fail to acknowledge here): to participants in seminars,
conferencesandworkshopsatwhichIhavetriedoutmuchof thematerial
in this book—at the universities of Athens, Cambridge, Copenhagen,
Cyprus, Dundee, London and Oxford; at Queen’s University (Ontario),
Louisiana State University, Ohio State University and Rutgers University;
at the Aristotelian Society, and at the IVR World Congress in Lund in
2003. Special mention must be made of three people—Lindsay Farmer,
Sandra Marshall and Victor Tadros—with whom I worked for three years
on a related project on the criminal trial: discussions with them, apart
from being enormously enjoyable, have made a significant difference to
this book, and I have benefited in particular from Victor Tadros’s
enthusiasticcritiquesof manyof myideasandarguments(onsomeissues,
he even managed to persuade me that I was wrong). Special mention is
also due to Doug Husak, from whom I have learned (and enjoyed
learning) much in conversations over the years. I am also grateful to an
anonymous referee for Hart Publishing. Finally, for this, as for my
previous books, my thanks go to Sandra Marshall, whose support and
companionship, both philosophical and personal, have been the corner-
stone of my life.
I have drawn on material from several previously published articles and
book chapters, and am grateful to the following publishers for permission
to do so: The Aristotelian Society, (‘Answering for Crime’ (2005) 106
Proceedings of the Aristotelian Society 85); Blackwell Publishing (‘Crime,
Prohibition and Punishment’ (2002) 19 Journal ofApplied Philosophy 97);
Buffalo Criminal Law Center (‘Harms and Wrongs’ (2001) 5 Buffalo
Criminal Law Review 13); Cambridge University Press (‘Action, the Act
Requirement and Criminal Liability’ in J Hyman and HC Steward (eds),
v
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Acknowledgements
Agency andAction (2004) at 69); Michael E Moritz College of Law, Ohio
State University (‘“I Might be Guilty, but You Can’t Try Me”: Estoppel
and Other Bars to Trial’ (2003) 1 Ohio State Journal of Criminal Law 245;
‘Who is Responsible, for What, to Whom?’ (2005) 2 Ohio State Journal of
Criminal Law 441); Oxford University Press (‘Criminalizing Endanger-
ment’ in RA Duff and SP Green (eds), Defining Crimes: Essays on the
Special Part of the Criminal Law (2005) at 43; ‘Strict Liability, Legal
Presumptions and the Presumption of Innocence’ in AP Simester (ed),
Appraising Strict Liability (2005) at 125); University of Tulsa College of
Law (‘Rethinking Justifications’ (2004) 39 Tulsa Law Review 829).
vi
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Contents
Table of Cases xi
Table of Legislation xv
INTRODUCTION 1
1. The‘General Part’ and the‘Special Part’ 1
2. A Normative Theory of Criminal Law? 6
3. Answering for Crime 15
1.RESPONSIBILITY AND LIABILITY 19
1. Responsibility and Liability 19
2. Responsibility as Relational 23
3. Prospective and Retrospective Responsibilities 30
2.CRIMINALLY RESPONSIBLE ASWHAT,TOWHOM? 37
1. Who can be Responsible? 38
2. As What Are We Criminally Responsible? 43
(a) Territories, Sovereigns and Subjects 44
(b) Moral Agents 47
(c) Citizens 49
3. Civic Criminal Responsibility 51
3.RESPONSIBLE FORWHAT? 57
1. Control as Necessary for Responsibility 57
2. What Can We Control? 60
(a) Thoughts, Emotions and Character 61
(b) Intended and Expected Outcomes 63
(c) Risks, Foreseen and Unforeseen 69
3. The‘Epistemic Condition’: A Condition of Responsibility or of
Liability? 72
4.CRIMINALLY RESPONSIBLE FORWHAT?
(1) CRIMES ASWRONGS 79
1. Preliminaries 79
2. Crimes as Wrongs 81
3. Moral Wrongfulness as Condition or as Object of Criminal
Responsibility? 82
4. Mala Prohibita as Wrongs 89
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Contents
5.CRIMINALLY RESPONSIBLE FORWHAT?
(2)ACTION AND CRIME 95
1. The‘Act Requirement’ 95
2. The Failure of the Act Requirement 96
3. Social Agency and the‘Action Presumption’ 99
4. Criminal Responsibility for Thoughts? 102
5. Criminal Responsibility for Involuntary Movements and States of
Affairs? 105
6. Criminal Responsibility for Omissions 107
7. Action and Character 115
6.CRIMINALLY RESPONSIBLE FORWHAT? (3) HARMS,
WRONGS AND CRIMES 123
1. Clarifying the Harm Principle 123
2. Harms and Wrongs 126
3. Harms, Risks and Remote Harms 135
4. Giving Harm its Due 138
5. Crimes as Public Wrongs 140
7.STRUCTURES OF CRIME:ATTACKS AND
ENDANGERMENTS 147
1. Attacks and Endangerments 148
(a) Distinguishing Attacks from Endangerments 149
(b) The Significance of the Distinction 153
(c) Legislating the Distinction?
2. Extending the Law? 159
(a) Attacks and Preparations 159
(b) Endangerment and‘Remote’ Harms 161
3.‘Implicit Endangerment’ and Mala Prohibita 166
(a)‘Implicit Endangerment’ and Civic Responsibility 166
(b) Pure(r) Mala Prohibita 172
8.ANSWERING AND REFUSING TOANSWER 175
1. Answering and Answering For 176
2. Refusing to Answer 179
(a) Bars to Trial: An Initial Typology 181
(b) Estoppel 183
(c) Prior Official Misconduct 185
(d) Entrapment 187
3. Criminal Responsibility and Citizenship 191
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Contents
9.OFFENCES,DEFENCES AND THE PRESUMPTION OF
INNOCENCE 195
1. The Presumption of Innocence and Proof Beyond Reasonable
Doubt 195
2. Actus Reus and Mens Rea 202
3. Offences and Defences: Why the Distinction Matters 207
(a) Rape and Consent 208
(b) Murder, Consent and Self-defence 211
4. Distinguishing Offences and Defences 216
(a) Prima Facie Wrongs and Reasons 217
(b) Presumptive Wrongs 220
(c) Attacks, Endangerments and Justifications 225
10.STRICT LIABILITY AND STRICT RESPONSIBILITY 229
1. Criminal Responsibility and Criminal Liability: The Simple
Picture 230
2. Strict Liability and Strict Responsibility 232
(a) Varieties of Strict Liability 232
(b) Strict Responsibility and Defences 236
(c) Strict Responsibility and Legal Presumptions 239
3. Justifying Strict Criminal Responsibility 242
(a) Risks of Harm 243
(b) Risks of Wrong 246
(c) Abusing Strict Criminal Responsibility 250
4. Justifying Formally Strict Criminal Liability 252
(a) Constructive Liability 253
(b) Justifying Formally Strict Liability 255
(c) Formally Strict Liability: Some Problems 257
11.UNDERSTANDING DEFENCES 263
1. Distinguishing Justification from Excuse 264
2. Truth, Justification and Belief 267
3. The Problem of ‘Putative Justification’ 271
4. The Problem of ‘Unknown Justification’ 277
5. Excuses and Exemptions 284
6. Reasonable and Unreasonable Mistakes 292
7. Finally … 297
References 299
Index 317
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