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Answering for Crime

Author(s): R. A. Duff
Source: Proceedings of the Aristotelian Society, Vol. 106 (2006), pp. 87-113
Published by: Wiley on behalf of Aristotelian Society
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IV*tANSWERING FOR CRIME
byR. A. Duff1
We can gain freshinsights
into aspectsof criminalliability
by focusing
firston thepriortopicof criminal
and on the
responsibility,
of responsibility:
relational
dimensions
is responsibility
for
responsibility
to someone.We are criminally
something,
as citizens,
to our
responsible
fellowcitizens,
forcommitting
of
'public'wrongs:I discussthedifficulty
givingdeterminate
content
to thisidea of publicwrongs,
and thewayin
moralresponsibility
which,
whereas
istypically
criminal
strict,
responsibility
is not.Finally,I explorethegrounds
on whichdefendants
might
denythat
theyarecriminally
beforethecourtsthatseekto trythem.
responsible
ABSTRACT

M

on substantive
/[ anywriters
criminal
law seemto agree

thatthe 'single,basic question'of criminallaw is 'Who
is liableforwhat?'.2I wantto revisethatquestionin twoways:
fromliability;second,by
first,by distinguishing
responsibility
takingmoreseriously
therelationaldimensions
ofresponsibility.
The basic,or first,
questionwillthenbe 'Who is [or shouldbe]
forwhat,to whom?'.My aimin thispaper
criminally
responsible
is to showwhatdifference
thischangein questionwillmaketo
ourunderstanding
ofthestructures
ofcriminallaw and criminal
liability.
andLiability.My concernis notwithcivilliability
Responsibility
(to pay damages,or to be requiredto perform
one's contract),
but withcriminalliabilityto convictionand punishmentand
withitsmoralanalogueof liabilityto blameand criticism.
Liabilitypresupposesresponsibility:
I am liable onlyforthat
forwhichI am responsible.
Whencriminalliabilityis strictor
vicarious,imposedforwhatmighthavebeendonethrough
nonculpableinadvertence
or forthe actionsof others,it mightbe
1. Thanks are due to the LeverhulmeTrustforthe award of a ResearchFellowship,
duringwhichI wrotethispaper; and to participantsin seminarsat the Universities
of Stirlingand of Cyprusforhelpfuldiscussions.
2. M. D. Dubber, CriminalLaw: Model Penal Code (New York: FoundationPress,
2002), 5: othertextbookauthorsoftenwriteas if theyagree.
*Meetingof the AristotelianSociety,held in Senate House, Universityof London,
on Monday, 21st November,2005 at 4.15 p.m.

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we commend'responsible'parents.3 II RelationalResponsibility.R.I am responsibleformy teaching.We are also responsible. To be responsibleis to be answerable. However. of course.and criticise thosewho are 'irresponsible'.to answerforthatforwhichI am responsible. for the good and the rightthat we do: but I cannot explore here the significant asymmetries betweenthesetwo typesof responsibility. see J. Responsibility (Oxford:Oxford UniversityPress. But both theseusages dependon the relationaldimension:a responsible agentis one whomwe can properly holdresponsible for what she does. One relationalaspectof responsibility is thatto be responsible is to be responsiblefor something. excusesalso admitresponsibility. As we willsee.59. those mattersfor which they are responsible. A. but avert liabilityby offeringa defence.and mustbe prepared.I may be called.88 R. 3. but avert liabilityby offering an exculpatoryanswerfor the action for whichresponsibility is admitted. to hold me to account.forwhichone needs to answer. This content downloaded from 86.responsibility does not entailliability:I can admit responsibility (criminaland moral)fordamagingyourwindow. A second relationaldimensionof responsibility is equally important.and I answerfor it in a way that exculpates me. we commendas 'responsible'those who take theirresponsibilities. Lucas. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . 1993). Some uses of 'responsible'are not thusexplicitly relational:we talk about 'responsibleagents'. teachersand citizens.forexample. seriously.237 on Thu. althoughless oftendiscussed:I am responsibleto some personor body who has the rightto call me to answer.to my students. criminalresponsibility. DUFF but it stillpresupposes imposedwithoutmoral responsibility.but thatwas justification: the only way to bringhelp to your grandfather.13.I admitresponsibility formy actionand itsimpacton yourinterests. My interesthereis in responsibility foractionsor statesof affairsthatare untoward.forthatforwhichI am responsible. as something forwhich I mustanswer. On responsibility as answerability. I am thenliableto criticism or to criminalconviction ifI cannot offer a suitablyexculpatory answer. who had collapsedinsidethelockedhouse.I might offera I did deliberately breakthewindow.

absentanysuchperson.she would needto showthatthereis someonewhocan holdmeresponsible formakingthatnoise.or to a passingstranger my lecturing technique:mypedagogicalactivitiesare not their business-I do not have to answerto them. thatofresponsibility are responsible for heldresponsible agents.thatis. (the It mightbe objectedthatwe shouldseparateresponsibility question of what we are responsiblefor) fromanswerable (the question of who can call us to answer for it). as I eitheract (or thinkor feel)fora reason.Whenwe ask what also ask to whom someoneis responsible for.To answerthe secondquestion.herclaimfails. responsibility I wantto insist. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . absentsuch a reason.forinstance. I am responsibleforwhat I do (or think.59. I can properlyask 'Why?'and 'To whom?'.we musttherefore she is responsible.who can be properly whatwe do.or act (or thinkor feel)as I had reasonnot to act (or thinkor one dominantthemein recenttheorising about feel).ANSWERINGFOR CRIME 89 I mustanswerto themforthe mycolleaguesand myemployer: way in whichI dischargeor fail to dischargemy pedagogical I am notresponsible formyteachingto myaunt responsibilities. If someoneclaimsthatI am responsible forthenoisemychair made.for such trivialthingsas the noise my chairmakes as I standup frommy desk. A linkbetween and answerability could be preservedby saying responsibility thatwe are responsibleforthatforwhichwe would have to answerifitneededto be answeredfor:butwe wouldnotidentify withanswerability to a specifiable personor body.unlessshe can answerthosequestions.it woulddisturbsomeone).thatwe are responsibleonlyforthat notforthatforwhichwe are only forwhichwe are answerable.herclaimfails.or feel)in so far as it is or could and should be responsiveto reasons:in so far.237 on Thu.13.I shouldsay a littlemoreabout each of thesecounterclaims.shewouldneedto showthatI had reasonnotto make sucha noise(that. herclaimis empty.however. is onlypotential answerable:potentialanswerability potentially responsibility.Thisreflects we as reason-responsiveness: responsibility. who wantsto question or to thequeen.To answerthefirst question. in so faras we are capable of graspingand being This content downloaded from 86. and that we are responsibleformanythingsforwhichwe are answerable to no one for instance.and therefore reasonnot to move as I did.

59.90 R. see e.237 on Thu. 5. I am not offering so radicallyrelativist a view. couldn'tI assertmybasicresponsibility thesameaccountofmyself byoffering toeveryone I comeacross.OxfordJournalof Legal Studies 23 (2003).I could properlyreplythatit was none of theirbusiness(unless theyweresuitablyconnectedto my aunt). This content downloaded from 86.and of answeringforourselvesin termsof is in play when reasonsare in play: reasons. at 165. Wallace.Whenreasons are notin play.responsibility is not in play either:I am not responsiblefor makingthat noise. 1994). DUFF guidedby reasons. As formy claim that theremustbe an answerto the 'To whom?'question. Gardner.and suchanswering does require an interlocutor: Butwhydoesitneeda particular In respect ofthe interlocutor? samewrongor mistake. to 'assertourselvesas responsible or asserting beings'.as is trueifthereis no reasoneitherto make or not to make thatnoise withmy chair. at 283). Ravizza. M. Gardner's directtargetis Rorty's claim that 'justificationis relativeto an audience'(R.The more significant pointis thattheyhave no rightto demandthatI accountto themfor myselfor my conductin this respect:if theytried to call me to accountformy unkindnesstowardsmy aunt. fromjudgesin theOld Baileyto friends in thepub to strangers on thebus?5 I could certainlyoffermy account. J.however. although it would be strangeto do so: an Old Baileyjudge or a strangeron the bus to whomI soughtto answerformy unfeeling behaviour towardsmy aunt would naturallyreplythat I did not have to answer for such conduct to them.and forour failuresto exercisethosecapacitieswhenwe failto respondto reasonsthatbear on our thoughtsand actions. J. 1998). For accounts of this kind.'Is Trutha Goal of Enquiry?Davidson vs. Responsibility and the Moral Sentiments (Cambridge. Fischer and M.13. PhilosophicalQuarterly 45 (1995) 281.4Responsibility we exerciseour capacitiesforresponsible agencyin responding to reasons.: Harvard UniversityPress. R. Responsibility and Control(Cambridge:CambridgeUniversity Press. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .JohnGardnerdisagrees.Mass.'The Mark of Responsibility'. Rorty. A.Wright'.we are responsibleforsuch exercises. I am responsibleto 4. 157. and J.Responsibility does to involvetheability answerforourselves.g.

to whom.I am responsibleonly to some specifiablepeople.we muststillask who else (ifanyone)has thestandingto hold us responsible for different aspectsof our lives.But for manymoral wrongs.13. not to all.I mightalso be answerablefor reallyseriousmoralwrongsto all othermoralagents:perhaps can properlycall me to accountfor anyone.maybeno one else has the standingto call me to accountwhen.to my familyfor my treatment of my childrenas a parent.I fail to practiceas I should:but I am still responsible forthatfailure-I am responsible to myself. III As WhatAre WeCriminally Responsible.to whom.it is true. responsibility to oneselfplays a substantiverole in our lives: to take oneselfand one's agencyseriouslyis. by positing oneselfas thepersonto whomone is alwaysanswerable. typically one that specifiesa role: I am responsibleas a k.by askingwhatit is to be a P. we determine whatI am thusresponsiblefor. This is notsimplyan ad hocattempt to preserve therelationalcharacter of responsibility.to myteammatesformyperformance in goal as a memberof the team.59.we mustask as what we are responsible.to hold oneselfresponsible forhow one lives. Thereare. I am responsiblein virtueof somenormatively satisfying ladendescription.If I set myselfthe selfimproving projectof learningthepiano. to Whom?To determine what we are responsiblefor.ANSWERINGFOR CRIME 91 to myaunt variouspeopleforthatunkindness-most obviously. them.somethingsforwhichI am responsible. Our account of what it is to be a $ will include an account of the prospective responsibilities thatone incursin becoming or being a ' responsibilities that will be owed to some This content downloaded from 86.Second.throughlazinessor weaknessof will.I am responsibleto my studentsand my colleaguesfor my pedagogicalactivitiesas (in virtueof my role as) as a teacher. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . and to otherfamilymembers. but not to anyoneotherthan myself. in part.friendor stranger.and for othernon-moral matters.First.we muststillexplainwhat it is to be responsiblefor X partlyby specifying to whomwe are responsible forX. whilstmakingit less interesting.237 on Thu.

If thereis good reason for such regulation.such breachesconstitute moral wrongs. forinstance. Accordingto some versionsof NaturalLaw theory. criminaloffences whosecommission is wrongful(if at all) onlybecause theyare prohibited:if the criminallaw shouldpunishall and onlymoralwrongdoers. A. ch. about rightsof way at junctions. A GeneralTheoryof the CriminalLaw (Oxford: OxfordUniversityPress. S. L.If. given the characterof the regulationsand the implications of breachesof them. 33-35. 18) thatother values set limitson the scope of criminallaw resemblingthose that many liberals would set. This content downloaded from 86.7thenwe are criminally responsiblesimplyas moralagents. see H. however(see ch. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . A. makeroomforsomemalaprohibita wrongful. On prospectiveand retrospective responsibilities.237 on Thu. Lucas. Moore.about speed limits.6 So as what-in virtueof what role or normatively laden Two familiarkinds descriptionare we criminally responsible? of legaltheorysuggestunsatisfactory answers.forthe moralwrongsthat we commit. 1968). and so on. Such a viewmightseemradicallyunder-inclusive. 1997). Hart.and of the Legal Moralismthat such theoriescan underpin. M.One questionis whether thereis good reasonto subject a kindof conductthatis not alreadydeterminately to wrongful legal regulation forinstanceto make legal regulationsabout whichside of the road to driveon. Punishment and Responsibility(Oxford: Oxford UniversityPress. 7. it turnsout.the secondquestionis how to deal withbreachesof theregulations: a plausibleansweris that theyshould be definedas crimes if and only if. Placing Blame. 211-30.we are responsibleas moralagents.13. Responsibility.59.about licensing.criminallaw is a kindwhosefunctionis to attainretributive 'functional justice'.about parking. the question of regulationfrom that of by distinguishing sanction.however.Mala prohibitaare thus not wrongfulprior to or independently of the legal regulationof the conduct 6.92 R. 9. it shouldsurelycriminalise onlykindsof conductthatare already We can. DUFF specifiablepersonsor bodies: I am retrospectively responsible to thosepersonsor bodiesformydischargeof thoseprospective responsibilities. as having no roomformalaprohibita. all and onlythosewhoaremorallyculpableinthe by'punish[ing] doingof somemorallywrongful action'.

ANSWERINGFOR CRIME 93 that constitutesthem.imposedby an alien power.Second. althoughhe commitswhat could be a seriouswrong. Prohibitionand Punishment'. claimthathis Surely.and evenless satisfactory. This argumentis not intended to justifythe entirearrayof existingmala prohibita. and whomshecallsto accountforourdisobedience (comparethe Englishlabellingof criminalcases as 'Regina v D'). The truthin Legal Moralismis thatcriminallaw is properly focusedon wrongdoing (see SectionIV below). Duff.whichtheyare punished 8. A. 'Crime.If law is a set of commandsissued by a thenwe are criminally sovereign. in Duff& Green(eds.2005). A second. N. as theydeserve. answerto the question 'As whatare we criminally is suggested responsible?' byclassical Legal Positivism.but they are wrongfulprior to and independently of theircriminalisation. This content downloaded from 86. forinstance. for criticismsee D. See R.59. Now thisis no doubthow thecriminallaw is (quitereasonably)understood by manywho appear in our courts as a set of peremptory demands.it impliesthatwe have good reasonto criminalise everykindof moralwrongdoing-evenif otherconsiderations thentipthebalanceagainstcriminalisation: butitis implausible to saythatwehaveany reasonto criminalise. DefiningCrimes:Essays on theCriminalLaw's Special Part (Oxford:OxfordUniversity Press.whosedutyis to obeyhercommandsor prohibitions.237 on Thu.it impliesthatthereis reasonto make it a crimeunder Englishlaw for a Germanto steal froma fellowGermanin Germany:a sensibledivisionof labourmight favoura systemof nationalcourtsoperatingwithmorelimited but if the aim is that wrongdoersbe punished jurisdictions. Its erroris to claim thatcriminallaw shouldfocuson wrongdoingas such. wrongdoing thecriminallaw's business.this seems to give any legislaturereason to criminaliseany kind of wrongdoinganywherein the world.).however. First. thusimplying thatwe are criminally responsible simplyas moral agents:we stillneed to identify the particularkindsof moral thatare.someonewho breaksoffa sexualrelationship in a crueland hurtfulway.13.the Germanthiefcould rightly admittedlywrongfultheftis simplynot the businessof the Englishlegal system.in principle. Husak 'Malum Prohibitumand Retributivism'.Journal of Applied Philosophy19 (2002) 97. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .' The stronger objectionto thistypeof Legal Moralismis that it is radicallyover-inclusive. responsible as the sovereign's subjects.

As citizens. itselfto themembersof whataspiresto be a liberaldemocracy: it shouldnot speak to themin the alien voice of a sovereign who claims authorityover them. It is worthnotingthat on this view we should not say that the criminallaw 'prohibits'the conductit definesas criminal-as if it providedsome new. Criminalresponsibility is of coursenot co-extensive withcivic responsibility: we are notcriminally responsible forourconduct in relationto all ourcivicresponsibilities.and forwhichwe willbe condemnedand punishedby thepolityif we cannotoffer an exculpatory answer. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . 1995). Law's Community (Oxford:OxfordUniversity Press. This content downloaded from 86. Postema. it ratherdefinesthe kindsof wrongthatare to countas 'public'. 1-2. butwe can say so farthat thecriminallaw.9 This suggestsa betteranswer to our question: we are as citizens.subjectto the law: we are. criminally responsible whichimpliesthatwe are criminally responsibleto our fellow citizenscollectively. 1986).Bentham and the CommonLaw Tradition(Oxford:OxfordUniversityPress. It is also worththinkingabout theimplicationsforpenal policy of takingseriouslythe idea thatoffenders are citizens. DUFF Butit is nothowthecriminallaw shouldpresent fordisobeying.bound by its demands.94 R. that speaks to us in our own collectivevoice in termsof the valuesby whichwe defineourselvesas a polity.a law by which we bindourselves. for our dischargeof whichwe are answerableto each other. 10.ch.especially chs.see G. contentindependentreason to refrainfromit. We willturnin Section IV to the questionof whichkindsof civicresponsibility could plausiblybe seenas criminalmatters. of course.underlaws thatare our laws. byand in criminalcourts:butthecourtsact on behalfand in the nameof thepolityas a whole(comparetheAmericanlabelling of criminalcases as 'People v D' or 'Commonwealth v D'). On theidea of thecommonlaw to whichI appeal here.We are.we have a rangeof civicresponsibilities to each other.and whose commandsgive reasonsforaction(as if thecriminal themcontent-independent of rape or murderconsistsin disobedienceto the wrongfulness sovereignwho prohibitsthem).But the law by which we are bound should not be somethingimposedon us by a sovereign:it shouldbe a 'commonlaw-a law thatis our law.10 9.59. 11. A.definesthekinds of wrongforwhichwe mustanswerto thepolity'scourts.and answerablein its courtsforour crimes. see also R. or so it claims. We are heldresponsible.13.as one aspectofourciviclife. calledto account.237 on Thu. Cotterrell.

especiallygiventheway in whichnationalcourts mightnow claimuniversal jurisdiction overcertaincrimes:thus tortureis triablein Englishcourts.e.whichI cannotdiscusshere)."2 CriminalCourt proves nationalcourtsmightlose this role. I should say somethingbrieflyabout international criminallaw. but we must effective.GermanCriminal Code ss. whichdependsneither on citizenship nor on geographical location.A. op. s. Criminal JusticeAct 1988. thelocationof myallegedcriminalconductin thegeographical over whichEnglishlaw has jurisdiction.237 on Thu.13. 134. This might suggestthat geographyratherthan citizenshipis the key whatmakesme criminally conditionof criminalresponsibility: but responsibleunderEnglishlaw is not Englishcitizenship.1' territory However. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .327-47. and shouldthus be takento addresstheirlawsin thefirst instanceto themembers ofthosecommunitiesi. and protected. and. R v Bow Street MetropolitanStipendiary Magistrateex parte Pinochet[2000] 1 AC 147. territories fortheir Legal systems requiremorethangeographical existence: theydependon politicalcommunities.Another. 277-322. lessambitioussuggestion is thatcrimes 11.wherever and by whomever If the International it is committed.One possibility is to see 'crimesagainst humanity' as crimeswhoseperpetrators shouldbe responsible to 'humanity'as a whole:pendingthedevelopment of an effective international court to act on behalf of humanity. 6. in communities thataspire to be liberaldemocracies. 5. cit. Second. 12. geographicallocationdoes not have thenormativesignificance that a primaryconditionof criminalresponsibility requires.ANSWERING FORCRIME 95 This claim thatcriminalresponsibility is tied to citizenship visitorsare also requirestwo qualifications.2003). to citizens. First. can we make substantive senseof humanity to whichpeople as a community couldanswer?). generally.The law's claimsand protection also extendto temporary visitors:but theymustfirstbe understood as applyingto citizens. See Cassese. This content downloaded from 86.03(1)(f). 3) definethe primaryjurisdictionof their respectivecriminallaws (but see Model Penal Code s.national courtsmay take on thatrole (but.temporary bound.by a polity'scriminallaw. Cassese.59. forclaimsof extra-territorial jurisdiction.. 1. 7. Compare the geographicaltermsin which the American Model Penal Code (s. 1.we mustask. 13. see also GermanCriminalCode s. International CriminalLaw (Oxford:OxfordUniversity Press.03) and German CriminalCode (s.'3 stillinquireintothebasisof suchinternational or trans-national criminalresponsibility.

despitethe of providingan appropriate difficulty accountof action.or in which it shouldbe grounded:shouldit be groundedin our actions. We can offeran account of what it is to be a citizenof a liberalpolity. DUFF shouldbe dealtwithby thecourtsof thepolitieswithinwhich in scope. or in the choicesfromwhichactionsflow. in particular crimesbystateofficials.whichwill explainour civicresponsibilities: but we shouldcertainly not be criminally responsiblefor everyfailurein our dischargeof our civic responsibilities. IV For What Should We Be CriminallyResponsible?To say that we are criminallyresponsibleas citizensto our fellow citizensdoes not yet say much about what we can be held criminally responsiblefor.96 R.thoughI have arguedelsewherethat. as theyare committed (unlesstheyare international withwar crimesby one stateagainstanother). Thereare two long-running debatesabout theproperobjects of criminalresponsibility. typesof crimethat seem to call for a trans-national or international response. systematic thenan international courtor othernationalcourtsmighthave reasonto claimjurisdictionnot on behalfof 'humanity'. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .or in the character traitsthat actions may reveal?I will not engage with that debate here.we can make substantive and plausiblesenseof the idea thatcriminal responsibility should paradigmatically be for actions (rather 14.14 We mightwell need to to deal withdifferent developboth thesesuggestions. 134 of theCriminalJusticeAct 1988includesunderthe offenceof 'torture'onlyacts committedby publicofficials.237 on Thu. A. This content downloaded from 86.all I would say hereis thatthe issuesraisedin this theimportance paragraphhighlight of askingthequestionthat relationalaccountsofresponsibility makesalient 'To whomare we responsible?'.59. buton behalfof thecitizenswhom the local courtsare not protecting. One concernstheaspectsof theagent on whichcriminalresponsibility shouldbe focused.13.but thatwhere thereare seriouscrimeswithwhichthe appropriatenational courtscannot realistically be expectedto deal. It is worthnotingthats.

a criminal trialcalls a defendant to answera chargeof wrongdoing.I have suggestedabove thatthetruth in Legal Moralismis that the criminallaw properlyfocuses on moral wrongdoing. whichtakesthefactthatconductcauses or threatens harm(to others)to be the primaryor only good reason for intothedetailsofthisdebate.2001).forinstance. Steward(eds. 16. and intentions). legalregulation certainkindsofwrongdoing seriously enough. Duff.qua wrongdoing.Hyman& H. (a) Legal MoralismFirst.13. 1984). Feinberg.I have arguedelsewherethatcriminal termsas a punishmentshould be understoodin retributive responseto wrongdoingthat seeks to communicatedeserved censureand to inducerepentant understanding.in his Doing and Deserving(Princeton:PrincetonUniversity Press 1970). 1. the Act Requirementand Criminal Liability'.59.charactertrait)do responsibility: we havegood reason. theprimary reason forFeinberg."6Withoutentering criminalising I wantjust to makethreepointsabout it here.ratherthanrelying on othermodesof it shouldbecausewe take and harm-prevention."5 The otherdebateconcernswhatitis aboutactions(or choices. See J.who also allowed forthe criminalisation of some non-harmful but offensive conduct(Harm to Others(New York: OxfordUniversityPress. orcharacter traits)thatcan makethemproperobjectsofcriminal whatkindsof action(choice. Principle.17 The criminal law speaksnotjustofharms. A. Agencyand Action(Cambridge:CambridgeUniversity Press. in J. 15. forcharactertraitsor vices).1859). See R. This is whatmostclearly criminallaw fromothermodesof legalregulation. The onlyreasonforMill. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .butofwrongs. and Community (New York: OxfordUniversity Press. On Liberty(London: Parker.237 on Thu. distinguishes fromotherkindsof'penalty'. 17. 1985)). Communication. herconviction and punishment condemnherforit. it.). to criminalise? Central to thisdebatehavebeentheLegal Moralist'sclaimthatcriminal and the Harm responsibility shouldbe formoralwrongdoing.forinstance.forthoughtsor conditions.at leastinprinciple. to thinkthat theyshould be salientin our systemof social regulation-thatthatsystemshouldidentify and condemnthem. 'Action.'The ExpressiveFunction of Punishment'. Offense to Others(New York: OxfordUniversityPress.18Ifwe areto have and punishment a systemof criminallaw. 69. 18.or merechoices and forno morethanactions(not. This content downloaded from 86. In Punishment.ANSWERING FORCRIME 97 than.Ch.2004). 95.

and partlybyfocusingon 'welfareinterests'. Harcourt.. Smith(eds. This content downloaded from 86. of kindsof conductthat opens the door to thecriminalisation are moreand moreremotely connectedto theharmsthatjustify theircriminalisation-which reducesthePrinciple's significantly constraining power. and withouttalkingof 'moralharm').20 Anotherreasonliesin theverynotionofharm.59. forwhichdo theyhave the standingto call us to answer. Simesterand A.'ExtendingtheHarm Principle: "Remote" Harms and Fair Imputation'.thefirstconstraint is implausible: ifwe are to understand thedistinctive harminvolvedin certain kindsofcrime. See B. 1996). Chs.13.).'The Collapse of the Harm Principle'.But this (to criminalisemost sales of firearms. 1-3. 31. More precisely.this is one version of the Principle. P. 20. we mustrecogniseits moral characteras a harmintrinsicto attacked(elsewe couldnotgraspthedistinctive beingwrongfully 19.and to condemnus? The Harm Principletellsus thatonlywrongs harmare candidatesforcriminalisation: thatcause or threaten are notthecriminallaw's business.withoutmentioning causallycontributory actions'.237 on Thu. the quotationis fromp. We must ask which kinds of wrongdoingare in principle criminalisable: whichare the businessof our fellowcitizens.19 otherkindsofwrongdoing Harm the However. 21. Harm and Culpability(Oxford:OxfordUniversityPress.98 R. Principlehas come to look increasingly vulnerable:it is unclearwhetherit offersus a principleof thatis bothsubstantive and plausible.. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .and to criminalise willlead to harmonlythroughtheintervening agencyof others for instance).which combines Mill's exclusiveness(this is the only proper reason for criminalisation)with Feinberg's insistencethatwe have reason to criminaliseonlywrongful harms. T. E.but conductthatcreatesa riskof harm(to criminalise dangerous conductthat drivingas such.theharmthatgivesthemtheircriminal character. 16 above).in A. Harm to Others(n. von Hirsch. 259.Feinbergtried to constrainits scope by rulingout moralisednotionsof harm (we can analysetheconceptually fundamental idea of a 'harmed condition.Journalof Criminal Law and Criminology 90 (1999).2' However. criminalisation One reasonforthisis thatwe clearlyhave good reasonto criminalisenot only conductthat actuallycauses harm. A. the Harm Principleis best understoodas an answerto the questionraisedby the overinclusiveness of pure Legal Moralism(see SectionIII above). A. H. DUFF (b) The Harm PrincipleSecond. 109.forinstance).

One could argueforthisprovisionby appealingnot to the Harm Principle.59. but to do so undermines the HarmPrinciple'sroleas a constraint on criminalisation. however. wrongthe otherperson. This content downloaded from 86.it is clearlytemptingto mobiliseit: eitherby appealingto the relatively 'remote'harmof attacks on religiousminorities to whichsuchconductmightultimately lead.forinstance. harmofsuchoffences The second rapeand burglary).if theyare intendedor likelyto stirup religious hatred. as a wayof providing a rhetorically rationalisation of claims that do not reallydepend satisfying on it: ratherthanarguingforthecriminalisation of stirring up religioushatredbecausewe seethatitis harmful.whichextendsPartIII of thePublic OrderAct 1986(dealingwithstirring up racialhatred)to cover 'religioushatred':one offence is to use 'abusiveorinsulting words or behaviour'.The point 22. Both these reasons can be illustratedby the Racial and ReligiousHatredBill 2005.When used in such ways. 37. or by arguingthatsuchconductsetsback our interest in not beingseriouslyinsultedin thisway-an interest thatcould be portrayedas integralto our welfare.237 on Thu.p.ANSWERING FORCRIME 99 as murder. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .or if I had been guiltyof the kind of deception that underminestrust:but it does not seem plausibleto say that we have reason to criminalisesuch conduct.theHarmPrinciple functions notso muchas a substantive principleof criminalisation. We can use thenotionof 'harm'in thisway.but to the offensiveness of such conduct.it stillseems If I break offa relationshipin a way that is over-inclusive.countingconduct certainly as harmfulbecauseit is wrongful.13. therelationship had beencentral to her life. (c) Crimesas 'Public'WrongsAnyattemptto salvagetheHarm Principlemustface a further problem:that even if it is not stretched to coverremoteharmsand moralharms.22 it becomesrathereasyfor a typeofconductto portrayit as thosewho wantto criminalise 'harmful'. Given the place held by the Harm Principlein the rhetoric of liberallaw. we portray itas harmful becausewe thinkthatit shouldbe criminalised. I certainly cruellyhurtful.and might wellharmher-if. constraint is also of dubiousforce:giventheextensiverangeof welfareinterests thatFeinberglists. Harm to Others.

e. since to count a wrongas 'public' is now simplyto say thatit is thekindofwrongthatcouldin principle be criminalised. To argue.but forhis action'seffects on.theviewthatitis a kindofwrongthat shouldconcernus all.thatdomesticviolence is not a 'private'matterthatthecouple shouldbe leftto deal withthemselves.to my friends. 1. This content downloaded from 86. 1765-9). IV. thepolityas a whole. 'the public'. We could more plausibly say that 'public' wrongsare those that properlyconcernthe public.We should not hope to findany singlecriterion. it does not pass even the firstof the three'filters'that Schonsheck identifieson the way to criminalisation:J Schonsheck. or neat set of criteria.but aboutwhosebusinessit is: itis to express.ratherthanto provide independent groundsfor.23It is. My suspicionis thatthisis nonetheless theway forward to ask whatkindsof wrongare in thissense'public'. a 'private' matter. but a 'public' wrongthat should be treated as criminal.Commentaries on the Laws of England (Oxford: ClarendonPress.100 R. and thatshouldbe criminal. Ch.wrongs?24 It willnot do to say that 'public' wrongsare those that injure'the public' as distinctfromidentifiable individuals:thatwoulddistortour of paradigmatic of the criminalwrongfulness understanding victimising crimes.but I am not answerableto myfellowcitizensas such.13. A. Harm Principleappearedto offer: we mustratherask. See Sir William Blackstone. we mightnaturallysay.of of the kindthatboth Legal Moralismand the criminalisation.whatkindsof 23. DUFF is not thatthereare strongerreasons(to do.ratherthanbeingthebusiness involved:but thisthendeprivesthe onlyof thoseimmediately idea of a 'public'wrongof anyindependent forceas a criterion of criminalisation. most obviously.the law would not condemnthe rapistfor the wrongdone to his victim.forinstance. or implicationsfor.237 on Thu.not 'private'.i.is to arguenot about its effects on the public. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .and therefore not the businessof the criminallaw: I am answerableto variousothersforsuchwrongdoing-tomy ex-partnerand her friends. That is. 24. On Criminalization (Dordrecht:Kluwer. in what will inevitably be a muchmorepiecemealway.59. it is thatthereis no good reason to criminaliseit. So can we thenmakesubstantive senseof thetraditional idea thatcrimesare 'public'. Vol. withthe moral and othercosts thatits criminalisation would involve)not to criminalise it.1994).

This content downloaded from 86. and am accused of criminaldamage.destruction of others'property.is not strict whichis takento cast doubton thejusticeof strictcriminalliability. by pleading'Not Guilty'or 'Guilty':but giventhe ofInnocence.Moral liability. I knockover and break V's valuablevase.less often discussed.ANSWERINGFOR CRIME 101 thebusinessof all citizens.recklessnessor even negligence)as to a central elementof the offence:thussomeonewho did not know and had no reasonto suspectthattheitemhe had in his possession was or containedan illegaldrugcould have been convictedof 'possessing'an illegaldrug(Drugs (Prevention of Misuse) Act 1964. Now it is not clearthatmoralliabilityis neverstrict(unless we define'strict'as 'withoutmoralfault'). knowledge. if I plead 'Not Guilty'thereis nothing for whichI mustansweruntilthe prosecutionhas provedthat I 25. sincehe is notmorally culpable. and moralresponsibility is typically strict. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .25 I am of courseexpectedto offeran answerto thechargeof criminal damage.and theburdenofproofthatitplaces Presumption on theprosecution. liabilitythatdoes not requireproofof criminalfault(intention.butour concernhere is withresponsibility. 1(1)). It is Strictcriminalliabilityis oftendiscussedand criticised.237 on Thu. Suppose (counterfactually) that the law defines'criminaldamage'to includethenegligent.13.s.it is unjustto convictone whose'possession'was notevennegligent.and are suchthat wrongare properly theyshouldbe identified and condemned as wrongsbythepolity. The familiarobjectionis that this permitsthe ofthemorallyblameless:evenifwe havegood unjustconviction reasonto criminalise drugpossession.59.way in which criminalresponsibility is narrower: is less oftenstrictthan is moral that criminalresponsibility responsibility. as wellas the intentional or reckless. 1. V Strict Liabilityand Strict Responsibility. whereascriminalresponsibility is not. s. ContrastCriminalDamage Act 1971.There is another.it is assumed. The discussionof Section IV concerned a familiarway in which criminal responsibility is narrowerthanmoralresponsibility: thatmany moral wrongsare not crimes.

TerrorismAct 2000. R. whereasthemore demandingprobativeburdenwas not.28 could have stipulatedthat. did so negligently.and in other cases it does so. A. 28: it is a defenceto a charge of possessingillegaldrugsto prove'thathe neitherknewnor suspectednor had reason to suspect'thatwhat he had was such a drug.also Food SafetyAct 1990.) in such The law could have made criminalresponsibility cases strict. 57. 8.59.sinceon standarddefinitions of thoseconceptsproofof recklessness (as takingan unreasonablerisk)or negligence (as failingto take care that I could and should have taken) also rules out most defences. ss. 5(l)-(2). It could have to definedthe offencesimplyas damaginganother'sproperty. This content downloaded from 86.I also relyhereon a distinction between'offence'and 'defence'thatis neither uncontroversial among theoristsnor alwaysclearlymarkedin the existinglaw. CriminalLaw Review(1996) 306. See Lambert[2002] 2 AC 545. ss. 14: this evidentialburden was held to be consistentwith the Presumptionof Innocence (ECHR art. 21. 6(2)). Sexual OffencesAct 2003.29 26. DUFF the offence-notjust thatI damagedthe vase.ss. 28. 16-19.237 on Thu. What that I did so intentionally I am criminallyresponsiblefor. but committed or recklesslyor negligently. Preventionof CorruptionAct 1916. See Misuse of Drugs Act 1971. A. whichit would be a defenceto prove that I did not do so or to adduceevidence or negligently.Buttherightofsilenceto erodeit precisely relievesus whichsurvivesdespiteattempts of anysuchdutyto answer. Sheldrakev DPP [2003] 2 Cr.what I must answerfor.26 in suchcases Butthekeypointhereis thatcriminal responsibility is not strict. 'The Presumptionof Innocence in EnglishCriminalLaw'. J. 29. See e. (It mightbe said thatevenifI do nothaveto answerin court fordamagingthevaseuntilitis provedthatI did so intentionally I do have to answerforit to the or recklessly or negligently. unless he adduces evidencesufficient to These are all ways in rebutor undermine thatpresumption.g. s.27 intentionally or recklessly to createa reasonabledoubtabout whetherI caused sufficient Or it the damage intentionally or recklesslyor negligently.sinceit requiresmensrea as wellas actusreus. 2.102 R. and foran egregiousexample.is therefore not damagingthe vase as such. Blake. s. policewhoinvestigate theallegedcrime. App. given proof that the defendant the courtmustpresumethathe damaged another'sproperty. Recklessnessand negligenceare morecomplicated. Responsibility vase intentionally or recklessly fallsshortof liability:evengivenproof(or an admission)thatI I mighthavea defence-perhaps damagedthevase intentionally. I actedunderduressthatsufficed tojustify or excusemyaction. 27. 75. Ashworthand M. but damagingthe still or negligently.13. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .

or negligently. and theemployer is chargedwithfailing'to ensure.NicomacheanEthics. but I am morallystrictlyresponsible just for damagingit.so thehealth. Health and Safetyat Work etc. n. I might wellhavean adequatelyexculpatory answer forinstancethatI damageditthrough non-culpable inadvertence or accident. recklessly. 111. but committing proof. Hunt [1987]AC 352.s. workof all [her]employees'. The claimthatmoralresponsibility is in thisway strictmight seem obviouslyfalse. 32.13. N. strictmoral I is norm. 1988).1.59.For surelymoral responsibility requires satisfaction of the 'control'and 'epistemic'conditions:33 I am morallyresponsibleforan outcome(thedamageto yourvase) 30. 33. but I must answermorallyto you just so long as I actually damagedit-it wouldnot be properforme to refuseto answer forituntilitwas established thatI was at leastnegligent.ANSWERING FOR CRIME 103 can be madestrict. am responsibility the morallyliable to blame for damagingyourvase only if I did so intentionally.thathe lackedtherequisitemensrea (thatI or negligently) did not damagethevase intentionally.31 responsibleforsuch injuriesto theiremployees. Fischerand Ravizza.32 but thepointis thatyou have therightto demandan answerfrom me to hold me responsible forthedamagethatI caused. butnot strictly liable. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . 4 above. Act 1974. Zimmerman. op.but she can rebutthat presumption and avoidconviction byprovingthatshehad done all thatwas 'reasonablypracticable'to ensureher employees' The law holds employersstrictly safety.To give an exculpatory constitutes a further example. recklessly answerthatavertsliability. J. See Nimmov AlexanderCowanand Sons [1968]AC 107. 2.: Rowman and Littlefield. cit. 31.30 Proofthattheinjurywas caused createsa rebuttablelegal presumption that by the machinery the employerhad failedin her duty.An Essay on Moral Responsibility (Totowa.but I mightstillbe morallyliable to pay fora new vase.suppose a factoryemployeeis injuredby machinery. Whilststrictcriminalresponsibility is exceptional.safetyand welfareat faras is reasonablypracticable. This content downloaded from 86. Such an answeravertsmoral liabilityto blame or criticism.or evidence. Aristotle. withoutmaking whichcriminalresponsibility to answersimplyfor liabilitystrict:theyrequirethe defendant therelevantactusreus(fordamagingthevase). M.237 on Thu. I need not answer in the criminalcourt for damagingyourvaseuntilitis provedthatI was at leastnegligent.

1981). I do not acquirea reasonto be morecautiousin openingthe door thatI lacked before. DUFF onlyif it was withinmycontrol.in thatI could have avoided bringingit about. A.I couldhavetaken 34.by showingthatI took all due carein myconduct:I had no reasonto expectthedoorknob to falloff.I becomeawareof thereasonthatalreadyexisted.CambridgeUniversityPress.and theepistemic conditionis a conditionnot of responsibility. I did what I had good reason not to do: the fact thatmy action (openingthe door) would cause such damage constituteda good reason not to act thus. I mightrebutthataccusation. If I realise. First.However. as somethingmore than a mereexpressionof regret. thatyourvase is behindit. and an apology.and so hitit withthedoor. or thedoorknobcame offand fellontothevase. Suppose thatI damagedthe vase in openinga door: I did not knowthatthevase was just behindthedoor. A.237 on Thu. This content downloaded from 86.itsgivingme reasonto P does not dependon my knowledgeof it.I should apologisefordamagingit. Williams.104 R. I am therefore responsiblefor damagingyour vase. and only if I knew or could have been reasonablyexpectedto realisethatit mightensue.'Internal and ExternalReasons'.13.just as one who mistakenly believesa glass of petrolto be a glass of gin does not realisethat he has good reasonnot to drinkfromit:34but evenif p givesme reasonto P onlyif it is suitablyconnectedto some aspectof myexisting motivational set. I did not realise thatI had thatreason. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .admits responsibility.Now responsibility is tiedto reasons:I am responsible foractingas I had reasonnot to act fornot responding to reasonsthatbore on my action.as I am about to open the door. 0. butof liability. at 102-3.supposeyouaccuseme ofnegligence in damagingyour vase.or to suspectthatthevasewas there. Third.59. Second. 101. See B.the controlconditionis satisfied ifit was withinmypower(whether I knewit or not) so to act that the relevantoutcomewould not occur-whichis to say thatit is satisfied foralmostall the actualoutcomesof our actions. Threeconsiderations supportmyclaimthatin boththesecases I am morallyresponsible fordamagingyourvase evenif I was not at fault. in his Moral Luck (Cambridge.

at 481 (ViscountSankey).thefactorsthat 35.36 It is worthnotingthat this difference betweenmoral and criminalresponsibility explainswhylegal theoristshave come to use 'excuse' to cover a far narrowerrangeof exculpatory conditionsthan are coveredby its ordinaryand philosophical uses. Woolmington v DPP [1935]AC 462. P. Simester(ed. A. Duff.Legal Presumptions. and block the transition fromresponsibility to liability..59.13. as forlay people.and the Presumption of Innocence' in A. In thusrebutting I admit the chargeof negligence.237 on Thu..2005). and partlyon an evaluationof theburdensinvolvedin forone's conductin a criminalcourt.why should the criminallaw be less demandingthan moralityin this way-in what it demands that we answer for? Second.. ofmoralresponsibility and the(typical) The (typical)strictness of criminalresponsibility raise two questions. responsibility fordamagingyou vase.ANSWERINGFOR CRIME 105 morecare. 'Strict Liability. thatit is thedutyof theprosecution to provetheprisoner'sguilt'beyondreasonabledoubt. For moralphilosophers. See R.in waysthatwouldhave avertedthedamage:but it would have been unreasonableto expectme to take morecare thanI did. This content downloaded from 86.35or that breaksin thatthread. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .). AppraisingStrictLiability(Oxford: Oxford UniversityPress. 125. what (if anything)can justifymakingcriminal responsibility sometimes strict. non-strictness First.It would also need to showeitherthatsuch provisionsare consistentwiththe Presumption of Innocence.One wayto tryto show theymarkjustified theformerwould be to arguethatin certaincontextsproofof theactusreusof theoffence can properly be takento constitute proofof guilt'beyondreasonabledoubt' if thedefendant fails thento adduceevidenceof lack of mensrea.An answerto answering thesecondquestionneedsto showwhyand whenitis reasonable to place such a heavierburdenof responsibility on citizensforinstancewhentheyare engagedin especiallydangerousor dubiousactivities. 36.as in theexamplesnotedabove? An answerto the firstquestionwill appeal to a conception of what it is reasonableforcitizensto demandof each other simplyqua citizens:it will dependpartlyon ideas of privacy (sinceto answerformyconductis to explainand thusto expose myself). withthe 'goldenthread'thatruns'[t]hroughout theweb of the EnglishCriminalLaw.

17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . We can see why legal usage properlydivergesin this way by noticingthat excusesadmit responsibility.For manycontemporary legaltheorists. VI toAnswer.instead.the obviousnexttopicis how we can answerforit: given proofthat I have committed. ignoranceor mistakeof fact-all countas 'excuses'.e. he is called to answerforthatwrongto accepthis conviction. whatkindsof answer-i.theydo notcountas excuses:an excuse is a defence. and musttherefore answerfor.Since moralresponsibility is strict.however. DUFF negatecriminalmensrea-accident. A.such pleas denythatthere responsibility is an offence forwhichthe defendant is criminally responsible: therefore criminal are not excuses. This content downloaded from 86. Afterthis discussionof what we are criminally responsible for. myexculpatory ignoranceof a keyfactnegatesmensrea.inadvertence. defence-couldI offerto block the transition fromresponsibility to liability?I cannotpursuethattopichere. and does not count as an excuse.I wantto look brieflyat anothertopic that an account of responsibility as answerability illuminates. Since criminal is not typicallystrict.whichpresupposesthe commissionof the offence withtheappropriate mensrea. accidentand pleas ofinadvertence.237 on Thu. Thecriminal Refusing trialcallsa defendant to answer a chargeof committing a kind of wrongfor whichhe must answerto his fellowcitizens. ignoranceare moral excuses: theyofferexculpatoryanswers for actionsfor whichwe admitresponsibility.106 R.If theprosecutionprovesthathe committed the offence. whilstduressmightbe an excuse. they thususe Legal theorists 'excuse'injust thesamesenseas philosophers do: thedifference in itsextension reflects thenormaldifference in scopeofcriminal and of moralresponsibility.59.But sometimesthe defendant willrefuseto answer to answerto thechargeor for theallegedoffence-onthegroundsthathe shouldnot have to answerforthatconductbeforethiscourt. a criminaloffence. and answerfortheconductin questionin a way fromresponsibility thatblocksthe transition to liability.13.or to offera defencethatblocksthe transitionfromresponsibility to liability. however.

40. This content downloaded from 86.59. DiplomaticPrivilegesAct 1964.she is now so disorderedthatshe is incapableof eitherunderstanding or in thetrialas a processthatcalls herto answera participating Or shemightclaimthatshehas chargeof criminalwrongdoing.ANSWERINGFOR CRIME 107 A defendant mightbe 'unfitto plead':37evenif she was sane and responsibleat the timeof the alleged crime.The CriminalProcess (3rd ed. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . 38. s. Consular RelationsAct 1968.sheis no longer answerableforthisallegedoffence criminally (thoughothers.06. Ashworth& M. is responsible (mustanswerfor)thatallegedoffence and constitute barsto trialratherthandefences.237 on Thu.or because answerableelsewhere. protectedby therule double against jeopardy.butwho askingnotjust who is criminally responsible can be heldresponsible.Emminson CriminalProcedure(9thed.but thatshe shouldnot evenbe tried. Redmayne. See e. mightstillbe able to call herto answerfor it morally). 2(1). Model Penal Code.Sprack. See A. See J.s.40 couldprovethat Suchpleas do notdenythattheprosecution a theoffence thedefendant committed charged. or is coveredby that the diplomaticimmunity.or becauseas a foreigndiplomat she is not answerablein thiscourt(althoughshe mightbe forinstanceto herownpolity). Or she promiseshim immunity 37.2002).nordo theyoffer defenceforcommitting thatoffence (whichwouldbe to admitresponsibility fortheoffence): theyratherdenythatthisdefendant in thiscourt. she will drop the more seriouschargethat he faced. An evenmoreinteresting kindof bar to trialis groundedin the towardsthedefendant.38 allegedoffence or thatshe has alreadybeentriedand a statuteof limitations.2005). giventhelapseoftime.g.She shouldnotbe triedbecausesheis incapableof forherconductin a criminal court(whichis notto say answering thattheremightnot be anotherforumin whichotherscan call herto account-a juvenilewho is too youngto be triedmaybe calledto accountby his parents).forwhatbywhom. Oxford: OxfordUniversityPress. 252-4. 39.. priorconductof stateofficials A prosecutormakes a plea bargainwitha defendant:if he will plead 'Guilty'to a lesseroffence. Oxford:OxfordUniversity Press.for instancehervictims. 360-8.These legal provisionshighlight the importanceof forwhat.theclaimis not thatthedefendant shouldbe acquitted.or herpreviousacquittal.39 and is therefore acquittedforthisoffence. J. or calledto answer..13. 1.

42 Even if the prosecutionhad sufficient. op.13.King. who act in our name. 2000). n. 43. DUFF fromprosecution.59. US v. The Englishcourtheld thatthe trialcould not go ahead.the court(and the law and the polity in whosename it acts) claimsto be upholdingtheruleof law.108 R.The pointmightseem obvious. assumption butthatis implicitly deniedby muchof therhetoric of the'war on crime'. 973-80. 341 (1939). it cannot at the same timeprofitfromthemisconductby continuing the defendant's trial. J.evidence to provehis guiltbeyondreasonabledoubt. to gethimto testify againstsomeoneelse.In calling thisdefendantto trial. St Paul: West PublishingCo. Israel. the US courtallowed it to proceed.but also orderingthatthoseguiltyof the misconductbe broughtto justice:if the court. J. A.. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .N. 42. This content downloaded from 86. and thevaluesembodiedin thelaw: buttheofficially sanctioned conductthat broughtthis defendantto trial was in flagrant violationof thosevalues and of the rule of law.thatwouldconstitute a partialendorsement of themisconduct. R. Alvarez-Machain504 US 655 (1992). and legitimately acquired. 502-8.theywould not acceptthem.speakingin the polity'sname.H. is to disownand condemnthatmisconduct properly. LaFave.4"There prosecuting are obviouspragmaticreasonsforthis:if defendants could not relyon such promises.or from himat all-barred bythepromiseshemade.But there is a moreprincipled reason:thepolityand its officials. See W.ex parte Bennett[1994]98 Cr App Rep 114.43 Thereis ofcoursemuchmoreto be said about 41.but it is worthnotingthat it is obvious only on the assumptionthat offenders are citizensto whom such fairdealingis owed an thatshouldbe uncontroversial. 453-9.. King. CriminalProcedure(3rd ed.She is thenbarredfrompursuingthemoreseriouscharge. See R v Horseferry Road Magistrates'Court. Nor can the courtdeal withthisproblembycontinuing withthisdefendant's trial.237 on Thu. 41 above. cit.Suppose that the defendantis presentfor trialonly because he was kidnapped abroad by or at the instigation of stateofficials. Israel. See LaFave. ComparetheAmericandoctrineof the'fruitof thepoisonoustree'.it wouldundermine the'integrity' ofthecriminal process. More interesting are cases in whichwhatbars a trialis prior officialmisconducttowardsthe defendant.it would (as it is oftenput) be an 'abuse of process'forthe trialto proceed.in thecontext of the exclusionof improperlyobtainedevidence:Nardonev US 308 US 338.mustdeal fairlywithits citizens-whichincludes keepingits promises.

59. I am ill-placedto condemnyou forcommitting it: not because it was nota wrong.ANSWERING FORCRIME 109 theconditions (ifany)underwhichitcouldbe morally.butyou are notanswerableto me.buthe is not now answerableto thepolityas a whole.and all citizensin whosename the entrappersclaimedto be acting.ifthereis one.and unlessthe entrapper usedsuchpressure as to constitute duress.as a publicwrong.groundedin the entrapper's official If I encouragedyouto commita wrong(and misconduct. You are no doubtanswerableto others to the victim. especiallyifI did so in orderto be able to condemnyou forit). or should be legally. which mightrenderconvictionproblematic.but who shouldwant to This content downloaded from 86.ifthepolity's officials inducesomeoneto commita crimein orderto prosecute himforit. butbecause in thewrongundercuts mycomplicity mystandingto call youto accountforit. boththevictim.but it seems implausibleas a defence.The entrappeddefendant did stillcommitthecrime.by the polity:thatis what we collectively owe him as our fellowcitizen. itoperates entrapment as a defence. while to prosecutetheentrappedoffender? continuing Suppose(which for obvious reasons is not the usual case) that the offender was entrappedinto committing a victimising crime burglary.properto take advantageof the fruitsof my own or another'swrongdoing: but it is mostobviouslywrongwhen takingsuch advantageoperatesto the detriment of the person againstwhomthewrongwas committed.throughthe courts. Or is there more room here for the thoughtthat the polityshould.thefactthat he committedit because he was encouragedto do so by someonewho was (unknownto him) a stateofficialdoes not reducehis culpability-asis evidencedby the factthatpurely private'entrapment' is not a defence.13.formally disownthe wrong committed by the entrappers and prosecutethemforit.thisundercuts thepolity'srightto call himto account forthatcrime:theremay be thoseto whomhe shouldanswer forit.and to otherswitha properinterest in the matter. perhaps.The victimof a burglarycan usuallyexpectthat (if thecrimecan be solved)the offender willbe called to account forthatwrong.237 on Thu. formally recognises as a barto conviction. Thisis also thebestwayto understand whyofficial entrapment In Americanlaw.If the burglar was entrapped.whichyou culpablycommitted. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . So too.We can moreplausibly see entrapment as a bar to trial.

and prosecutingthe entrappedburglar still legitimatelyserves thatend. so long as I am also readyto be called to account (or to call myselfto account) forthe wrongI committedin incitingyou.or to take advantageof. This content downloaded from 86. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . should be able to expectthat the entrapperswill be called to answerfor their wrong.but in a case of officialentrapment.Seen objectively.44 Of course. See People v Jaffe185 NY 497 (NY 1906). Smith[1975]AC 476: for discussion.237 on Thu. kidnappeddefendant wouldbe: forthepolity'saim shouldnot be to 'out' and thenprosecutethose who are predisposedto burglary (whichwas theentrappers' aim).Or mightwe see here a different reason fornot convicting the entrappeddefendant: not thatthe politylacks the rightto call him to answer. in what turnsout to be a police sting. it is because of the dangersthatdrugs createfortheirusers.45 44.but that therewas no offenceof a kind that shouldconcernthe criminallaw? If drugdealingis properlycriminalised. 98-106.but should theynot also stillbe able to expectthat the burglarwill be called to account for the burglary?This would not be to profitfrom.entrappedcrimesdo not usuallyhave a direct victim:a morefamiliarexampleis thatin whicha drugdealer is inducedto supplydrugs to undercoverpolice officers. Somewhatanalogously. it shouldratherbe to respond appropriatelyto burglaryas a public wrong.nor that he has a defence. DUFF make clear that it was not in theirname. wrongwas committed: thedealercertainly had therequisite mens rea.110 R. 206-19. no criminal therefore.We cannotexplorethose realmshere.I mightstillclaim the rightto call you to account for thewrongyou committedat myinstigation. the wrongcommitted in the way thattryinga by the entrappers. also Haughtonv.see my CriminalAttempts(Oxford:OxfordUniversityPress 1996). A.but a genuineactus reus was lacking.13. the policewillpresumably have takenstepsto ensurethatno such dangeris actualised. In such cases we mightalso say-if we agree that drugdealing is properlycriminalisedthatnot one but twocriminalwrongs have been committedwhose perpetrators should be called to answer:the entrapment and the supply. 45. of an intentionto supply.59.This line of argumentleads into the murkyrealmsof 'impossibleattempts': thecase is comparableto thatof someone who buyswhat she mistakenly believesto be stolengoods.

Nor need he claimthathe has no obligationto obey the law: thatmightbe argued. on a neighbour.59.further disturbing possibilities open up.however. This content downloaded from 86.Nor need he denythathe should answerto others-mostobviouslyto his neighbours-forhis actions. the politylacks the standingto call himto accountforthem? A simple.Once we beginto thinkin theseterms. so on.Mighthe not withjusticearguethat. he is not responsibleforhis conductbeforethiscourt. and benefit fromitswelfare. educationaland medicalprovisions.or seriousassault woulddefineas a crime:withburglary. indeedencouragedand helped-to takepartin thepoliticallife to sharein its materialand social goods.Suppose too thathe does not deny committed it. He need not claim that what he did was not committing a wrong.in the ofbeingallowedbenefits as wellas theburdensofcitizenship.givenhis systematic exclusion fromcitizenship in thepolityin whosenamethecourtsact.237 on Thu. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions . Supposethenthata defendant belongsto a groupwhose members havenotbeentreatedwiththerespectand concerndue to themas citizens:theyhave been (if not by design.ANSWERING FORCRIME 111 I have been talkingso farof waysin whichspecificpiecesof officialmisconducttowardsa defendantmightunderminethe polity'srightto call her to answerfor her crimes.or that his commissionof it was eitherjustifiedor excused.to of thecommunity.but we saw that the criminal of such offences does not consistin disobedience wrongfulness to a law thatprohibitsthem.extremeexampleof this kind would be that of a black South Africanbroughtto trialin the apartheidera. whatany legal system Suppose he is chargedwithcommitting or rape. values of thepolityto whichtheybelong: againstthe defining to summona defendant to trialis thusto claimto addressand to treathim as a fellowcitizen.whateverwrongs he has committed.All he needclaimis that.certainly in the in effect) excludedfromfullparticipation systematically polity. Criminaldefendantsare called to answerby theirfellow forwrongsthattheyallegedlycommitted citizenscollectively.or to this polity.But beingtreatedas a citizen responsible:it is is not just a matterof beingheld criminally a matterof beingincluded.13.of beingallowed to share.of who has the right and more to call wrongdoers to answerfortheirwrongs.

112 R.and I do not thinkthatwe can be. Justhow theseideas could be given 46.Two ideasmight emergefromtakingtheidea ofholdingourselvesand each other to accountseriously:thatwe mustbe collectively readyto be called to accountby thevictimsof suchinjustices(ifwe are to call themto answerforthewrongsthattheycommit.we mustask ourselvesnotonly how we can startto remedythose injustices(a questionthat of thecriminallaw). See further my op. DUFF One questionwe mustthenask ourselvesis this:howconfident in our courts are we thatall thosewho appear as defendants are properlyanswerableto us fortheircrimes?Of coursethey citizenshipin the stark have not been excludedfromeffective was: and extremeway thatthe black SouthAfricandefendant can we be thatwe have collectively treated but how confident themwiththerespectand concerndue to themas citizens?If we of this.46 We cannot doubt that our own societyand otherslike it are in various ways systematically unjust that thereare disadvantagedgroupswho are in variouswaysexcludedfrom intherights and benefits ofcitizenship. n. A. cannotbe confident the legitimacy of our criminalprocessof trialand punishment raisesa secondquestion:what is seriouslyundermined-which are we to do? The end of whatis alreadyan over-long paperis nottheplace to pursuethesequestions.13.or as still as havingjustifications havingan obligationto obeythelaw) thatare centralto worries we can do penaljusticein an unjustsociety:one about whether that meritof an approachto thetopicof criminalresponsibility of responsibility is that takestherelationaldimensions seriously it forcesus to facethesequestions.we must be readyto be called to accountforthewrongsthattheyhave suffered at our collective and typicallypassive hands). 17 above. adequateparticipation as is also plausible. This content downloaded from 86.237 on Thu.thoseinjusticescast doubton our collective responsible standingto holdmembersof suchgroupscriminally forthecrimesthattheycommit. and thatwe shouldseekwaysof showingthatwe hold ourselvesto accountforthoseinjustices. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .All I wouldsuggesthere is thatit is thesequestions(ratherthanthequestionof whether serioussocial injusticesshouldbe seen thosewho have suffered or excusesfor theircrimes. but whetherand is pressingindependently howthecriminallaw can takeaccountofthem.59. cit. If.

237 on Thu.a.59.13.duff@stir. ofPhilosophy Department of Stirling University FK9 4LA Stirling. 17 Dec 2015 14:51:19 UTC All use subject to JSTOR Terms and Conditions .FORCRIME ANSWERING 113 is obviouslyproblematic: practicablelegalor politicalexpression if we but thisis one directionin whichwe shouldbe thinking citizens aspireto be treatedand to treateach otheras responsible of a liberalpoliticalcommunity. This content downloaded from 86. ac.uk r.