Defending the Realm of Criminal Law
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Defending the Realm of Criminal Law R. A. Duff1 Accepted: 3 September 2020 © Springer Nature B.V. 2020
Abstract This is a response to ten critiques of my 2018 book The Realm of Criminal Law, by Stephen Bero and Alex Sarch, Kim Ferzan, Stuart Green, Doug Husak, Nicola Lacey, Sandra Mayson, Victor Tadros, Patrick Tomlin, Alec Walen, and Gideon Yaffe. I take the opportunity to explain the main aims and themes of the book, to clarify some of its arguments, and to note some of the ways in which those arguments need expansion, development, or revision. Topics discussed include: the usefulness and limits of ‘rational reconstruction’ as a method of normative theorising; public wrongs and the scope of the criminal law; the idea of civil order as central to a political theory of criminal law; wrongness constraints on criminalization; mala prohibita and regulatory offences; the ‘De Minimis’ principle; and criminal law ‘abolitionism’. Keywords Rational reconstruction · Public wrongs and civil order · Citizenship and jurisdiction · Wrongness constraint · Mala prohibita · De Minimis · Abolitionism
1 Introduction I would like to thank the other contributors to this symposium for their critically constructive responses to my book1: I cannot do justice to all their comments here, but will tackle (what I take to be) their most significant criticisms. They certainly expose some of the ways in which I failed to make my claims and arguments clear (to myself as well as to others), and bring out some of the ways in which the book’s central themes need to be further developed; but I hope to show that they do not 1
R A Duff, The Realm of Criminal Law (Oxford University Press, 2018); hereafter Realm.
This is a response to ten critiques of my book, drafts of which were discussed at a workshop at Rutgers: I am very grateful to Alec Walen and Doug Husak for organising that workshop and this symposium; to the critics to whose papers I respond here; and to all the participants in that enjoyably challenging workshop. * R. A. Duff [email protected] 1
University of Stirling, Stirling, UK
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Criminal Law and Philosophy
threaten the central ideas that I tried to explain and defend. In what follows I provide a brief account of the book’s aims and main themes (s. 2) before responding to the commentators: I discuss the methodology of ‘rational reconstruction’ and the relevance of history in s. 3; the idea of civil order in s. 4; issues concerning citizenship and jurisdiction in s. 5; public wrongs and legal moralism in s. 6; mala prohibita in s. 7; abolitionism and the end(s) of criminal law in s. 8.
2 The Realm of Criminal Law The book emerged from a four-year research project on Criminalization, on which I worked with four colleagues: Lindsay Farmer, Sandra Marshall, Massimo Renzo, and Victor Tadros. The avowed purpose of the project was ‘to develop a normative theory of criminalization: an account of the principles and values that should guide decisions about what to criminalize’,2 and that was my goal when I s
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