Duffing Up the Criminal Law?
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Duffing Up the Criminal Law? Patrick Tomlin1
© The Author(s) 2019
Abstract R.A. Duff’s The Realm of the Criminal Law advances the literature on criminalization by providing the most thorough exploration and defence yet provided of the intuitively attractive idea that criminalization is properly limited to public wrongs only. I outline here six concerns I have with the view, as presented in this book, and suggest where the account needs further elaboration, defence, or rethinking. Keywords Duff · Criminalization · Public wrongs · Legal moralism
1 Introduction I am tremendously honoured to be asked to participate in this symposium on Antony Duff’s The Realm of Criminal Law. The international community of criminal law theory owes Antony a huge debt. He is not only one of the preeminent scholars in this field, he has also done so much to build and shape it as a community. The Realm of Criminal Law Theory is a civil order in which Antony has played a leading role. And while Antony’s politics are avowedly egalitarian, academic esteem is not, and he is surely one of the high priests of that community. The central idea that The Realm of Criminal Law seeks to explore and defend— that the proper scope of criminal law is limited to ‘public wrongs’—is a powerful and intuitively attractive one. But it is also one that is hard to pin down. The idea, attractive as it is, seems to swing between something close to empty, and something close to scary. At the empty end, it can feel as if it swings a little too close to ‘we I am grateful to Antony Duff, Victor Tadros, Alec Walen, and all who attended the conference at Rutgers in May 2019 for useful feedback and discussion. A word on the title: ‘Duff’ in colloquial British English carries at least three distinct meanings: ‘duff’—defective; ‘duff up’—to beat up; and ‘up the duff’—to be pregnant. Antony’s name means that a pun-based title is essential. I should have thought of a better one though. For special issue on R.A. Duff, The Realm of Criminal Law. * Patrick Tomlin [email protected] 1
University of Warwick, Coventry, UK
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Vol.:(0123456789)
Criminal Law and Philosophy
should only criminalize what we ought to criminalize.’ So formal as to be just about empty. At the scary end, ‘public wrongs’ seems so permissive as to provide hardly any brakes on the criminalization process at all—if we think something is ‘our’ business, we can criminalize it. This hardly offers us the principled bulwark against overcriminalization that we seek.1 This book develops, explains, argues for, and replies to criticisms of the view in ways that renders it much clearer and more convincing than previous iterations. I, for one, now have a much better sense of what the view can do, and where it is coming from. But the book is also candid about what the view cannot do. The concept of public wrongs is not empty, but it is ‘thin’. It is not a substantive view of criminalization. Rather, it can structure debate about criminalization. That said, I do, of course, have remaining, and new, w
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