The Reach of the Realm
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The Reach of the Realm Kimberly Kessler Ferzan1
© Springer Nature B.V. 2020
Abstract In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests (non-citizens). I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be (active personality) and over harm to its citizens/interests wherever in the world the attacks occur (passive personality). How do we go about deciding upon the objects of criminalization? In the careful, nuanced, and magisterial The Realm of Criminal Law, Antony Duff argues, “[W]e are, paradigmatically, criminally responsible as citizens to our fellow citizens. The citizens of a polity are the primary addressees of its criminal law: our criminal law speaks, paradigmatically, to us as citizens of a polity whose law it is (and speaks in our collective voice); it is, paradigmatically, as citizens that we are bound by the criminal law; a defendant in a criminal court appears, paradigmatically, as a citizen who must answer to his fellow citizens.” (103)1 This polity determines its res publica, and through that determination, it determines which wrongs are properly its concern. Throughout the monograph, Duff’s foil is Michael Moore. To Moore, our starting point for criminalization is moral wrongfulness.2 We may be limited by liberty and privacy, and we may not enforce murder in other countries because of sovereignty, (75) but to Moore, moral wrongfulness writ large is our business. (74–75)
1 All numbers in parenthesis refer to R.A. Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018). 2 See generally Michael S. Moore, “A Tale of Two Theories,” Criminal Justice Ethics 28 (2009): 27–48.
* Kimberly Kessler Ferzan [email protected] 1
University of Virginia, Charlottesville, USA
13
Vol.:(0123456789)
Criminal Law and Philosophy
Duff is troubled by this idea, as he finds a view that, even prima facie, maintains that the United States could hold a Canadian citizen liable for defacing another Canadian citizen’s property in Canada to be wildly counterintuitive: Moore’s legal moralism… is expansive as to its location and perpetrators, of the wrongs we have reason to criminalize. If moral wrongdoing deserves punishment, it presumably deserves punishment wherever, by whomever, against whomever it is committed. So we all have reason to promise the imposition of such suffering on wrongdoers anywhere in the world, and thus reason as legislators to bring all wrongdoers within the reach of the criminal law. Those reasons are not restricted by geography or territory. The English legislature has reason to bring within the scope of English criminal law not just wrongs committed within England, but those committed anywhere in the world—to count
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