Approaching or Re-thinking the Realm of Criminal Law?
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Approaching or Re‑thinking the Realm of Criminal Law? Nicola Lacey1
© The Author(s) 2019
Abstract In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes (Duff et al. in The boundaries of the criminal law, 2010; The structures of the criminal law, 2011; The constitution of the criminal law, 2013; Criminalization: the political morality of the criminal law, 2014) and two fine monographs by Farmer (Making the modern criminal law: criminalization and civil order, 2016) and Tadros (Wrongs and crimes, 2016; see also Tadros in The ends of harm: the moral foundations of criminal law, 2011). It will shape the field for decades to come; and it has decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility (cf. Lacey in Frontiers of criminality, 1995). Keywords Criminalization · Criminal law · Responsibility · Punishment · Legal moralism While The Realm of Criminal Law is informed in different ways by most of Duff’s earlier books, its most obvious forebears are Punishment, Communication, and Community (2001) and Answering for Crime (2007). In the former, Duff argued that punishment is best justified as a political community’s attempt to ‘communicate to offenders the censure they deserve for their crimes’ and, ‘through that communicative process to persuade them to repent those crimes, to try to reform themselves, and thus to reconcile themselves with those whom they wronged’ (Duff 2001: xvii). And in the latter, taking off from a conception of human agency as the capacity to respond to reasons, Duff argued that criminal responsibility is one differentiated * Nicola Lacey [email protected] 1
London School of Economics, London, UK
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Criminal Law and Philosophy
normative moment in a distinctive overall social practice of criminalisation. He held that criminalisation, taken as a whole, represents the institutionalisation of one key idea: that of members of a shared political community answering to one another and calling one another to account for alleged wrongdoing. While in the current work punishment is set in the background—as a non-definitional aspect of criminal law—a move which renders Duff’s substantial contributions to sentencing theory somewhat oblique to his current vision of the realm of criminal law—the previous themes of communication, censure, political community, and answerability remain key to Duff’s vision, while the method of rational reconstruction or interpretation is broadly similar to the practice conception of criminal law theory articulated
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