Criminalization: In and Out
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Criminalization: In and Out Victor Tadros1
© The Author(s) 2020
Abstract In this paper I explore Antony Duff’s claim that there are categorical constraints on the scope of the criminal law that are set by its internal standards. I argue against his view that such constraints are categorical, and I suggest that his account of the nature of the criminal law is partial, and narrows the focus of our enquiry into the scope of the criminal law too much. However, I suggest that the project is an important contribution to our understanding of one central element of the criminal law. Keywords Duff · Criminalization · Wrongness · Aptness · Punishment Debates about criminalization have involved debates about certain kinds of criminalization principle, such as various versions of the harm principle, the wrongness principle, the sovereignty principle, and so on. In the course of those debates, one thing that is beginning to come into sharper focus concerns different properties that principles might have, and that helps us to clarify the principles that we subject to critical scrutiny. We are all now familiar with various contrasts that have been drawn between principles. These include: (1) The contrast between content-focused principles that are concerned with what is criminalized and effect-focused principles that are concerned with the effects of criminalization. (2) Principles that state uniform reasons for and against criminalization and principles that state duties to or not to criminalize. (3) Principles that state all things considered duties to criminalize, or not to criminalize, and those that state only pro tanto duties to do so, or not to do so.
* Victor Tadros [email protected] 1
School of Law, University of Warwick, Coventry, UK
13
Vol.:(0123456789)
Criminal Law and Philosophy
Criminalization principles can also be stated with more or less restricted domains. For example, they might apply to all possible worlds, all possible states governed by liberal democracies, all circumstances that are likely to occur, and so on. Antony Duff’s magisterial work, most recently and carefully developed in The Realm of Criminal Law1 (hereafter ROCL) illustrates another way of distinguishing principles of criminalization: it suggests that we distinguish principles that are internal to the kind of practice or enterprise that criminal law is, and those that may influence how we utilize the criminal law, but that are external to it. Let us label these just as ‘internal’ and ‘external’ principles for short. Duff seeks to rescue some principles concerned with wrongness from sceptical challenges by showing that these principles are true when understood as principles that are internal to the criminal law. He also seeks to show that there are categorical principles of this kind. Whilst such principles are ‘thin’, in that they do not guide the content of the criminal law in themselves in a very precise way, without further information about the particular values of the political communities that seek to apply them, they n
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