JURISPRUDENCE

2018, VOL. 9, NO. 2, 276–299

https://doi.org/10.1080/20403313.2017.1386875

Criminal law’s asymmetry

James Edwards
Faculty of Law, University of Oxford

ABSTRACT KEYWORDS
Criminal law confers powers and grants permissions. In doing so it Criminal law; political
does not treat all alike. Some state officials (and some of their philosophy; punishment;
delegates) are given powers and permissions that are much more trial; prevention
extensive than those given to private persons (who are not
delegates). As a result, steps taken to achieve criminal justice are
often serious crimes if taken by members of the latter group, while
being perfectly lawful when taken by members of the former. My
question here is what justifies this asymmetry. I consider two
candidate explanations. One appeals to impossibility. Another
appeals to efficiency. While explanations of the first kind have
become increasingly popular, I offer some reasons to doubt that
they succeed. I conclude with a preliminary defence of a view that
appeals to efficiency.

I
To criminalise is to prohibit. It is also to empower and permit. To take but one example, to
criminalise robbery is not only to create a legal duty not to rob. It is also to confer a power
to sentence those convicted of robbery to punishment (say, four years in prison). And it is
to grant a permission to impose the punishment on convicted robbers (by locking them up
for four years). On any view, such powers and permissions help the criminal law fulfil its
functions. But the powers and permissions in question are not made equally available to
all. Criminal law gives state officials (and some of their delegates) powers and permissions
that are much more extensive than those given to private persons (who are not delegates).1
The upshot is that steps taken to achieve criminal justice are often serious crimes if taken
by members of the latter group, while being perfectly lawful when taken by members of the
former. My question here is what justifies this asymmetry.
I begin with an asymmetry that is often discussed separately. It is an asymmetry in the
principles of distributive justice that apply in different spheres. Many claim that officials
have duties of justice, when they shape our political institutions, which are inapplicable to
private persons in their everyday lives. There are competing explanations of why this
might be. One appeals to efficiency. Another appeals to impossibility. Similar expla-
nations, I suggest, can be offered when it comes to criminal justice. We can give

CONTACT James Edwards james.edwards@law.ox.ac.uk

1
I say more about what it is to be a delegate of the state below. Suffice it to say for now that when states privatise prisons,
they delegate the task of carrying out prison sentences to the employees of private companies. Those employees then
benefit from powers and permissions previously available only to state officials.
© 2017 Informa UK Limited, trading as Taylor & Francis Group
 JURISPRUDENCE 277

justifications of the asymmetry identified in the previous paragraph that appeal to each of
the aforementioned ideas. In the second half of this paper, I offer some reasons to doubt
appeals to impossibility in the context of criminal justice. And I offer a preliminary
defence of a view that appeals to efficiency.

II
In a just society, a just distribution obtains. This distribution, let us assume, requires some
kind of equality between people. What duties do we have to bring about the just distri-
bution? What are we required to do to make things more equal?
Consider first our major political institutions. Some people occupy roles within these
institutions. Call them officials.2 The institutions in question are norm-governed and
norm-generating. Some officials have the power to change one or both sets of norms.
Many accept that officials who possess these powers have duties of justice that apply to
them in their official capacity. They have duties to reduce inequality, by putting in
place institutional arrangements that will have this effect.
These remarks do not imply that officials should aim at justice. By aiming to do our
duty, we sometimes make it less likely that our duty will be done. It is plausible to
think that just distribution requires coordination between officials. And it is plausible
to think that if officials are to coordinate their activities effectively, they cannot simply
aim at justice in everything they do. Imagine that justice will be done if and only if officials
coordinate, and that effective coordination requires following certain rules. Each official
should then follow the rules rather than taking aim at justice. They should do so precisely
because they have the duties identified at the end of the last paragraph.
Some claim that things are different for those who are not officials, and for officials
when they are not acting in their official capacity. Such persons often have the ability
to change how things are distributed, despite lacking the powers officials possess in
their official roles. Some have large amounts of money that they could donate to those
less fortunate than themselves. Does justice require that they donate?
Dualists claim that it does not. As private persons, we have no duty to reduce inequality.
Our only duty is to support the creation of institutional arrangements that will make
things more equal.3 We must act in ways that will lead officials to act in ways that increase
the justice of the distribution. But we are not required to increase the justice of the distri-
bution ourselves. This is not because we cannot coordinate effectively enough to do so. We
lack the duties officials have, in their official capacity, even if we know our actions would
eliminate inequalities that will otherwise remain.
Monists disagree. If officials have duties to reduce inequality, private persons have them
too.4 As we already saw, this does not mean that everyone should act in the same way, or
pursue the same aims. If the most effective way to reduce injustice is to follow a set of rules,
2
These officials and institutions may or may not be officials and institutions of the state. For the purposes of this section and
the next, this is beside the point.
3
The most well-known Dualist is John Rawls. For his most extensive discussion, see Rawls, Political Liberalism (expanded
edn, Columbia University Press 2005) 257–88.
4
Liam Murphy defines Monism as follows: ‘all fundamental normative principles that apply to the design of institutions
apply also to the conduct of people’; ‘[w]hat Monism rejects … is that there could be a plausible fundamental normative
principle for the evaluation of legal and other institutions that does not apply in the realm of personal conduct’: see Liam
Murphy, ‘Institutions and the Demands of Justice’ (1998) 27(4) Philosophy and Public Affairs 251.
278 J. EDWARDS

this is what our duties of justice would have us do. The same is true if we can do most to
reduce inequality by donating to political campaigns, or working for political representa-
tives. But our pursuit of justice should be institutionally mediated only so long as this
effectiveness condition holds. When donating to the less fortunate will do more to
reduce inequality, this is what justice would have us do.
Two defences of Dualism are on offer. One appeals to efficiency. We have moral duties
that are not duties of justice. And we have goals and projects to pursue that make our lives
go well for us. We cannot reduce inequality without devoting time and resources to the
task. But doing so will often render us less able to conform to other moral duties, while
hindering pursuit of our projects and goals. This conflict can be ameliorated if we delegate
our duties of justice to officials. Thereby, we achieve a valuable division of labour.5 While
officials get on with reducing inequality, we can focus on our other moral duties, and on
our own projects and goals. If all goes well, we achieve more of what is of value than we
would have in the absence of delegation.
A second defence appeals to impossibility. With major social and political insti-
tutions, some say, comes a new moral problem. The institutional arrangements we
choose must be justified to each person. There are different explanations of why a jus-
tification is needed. Some appeal to imposition, others to interaction.6 On both views,
however, institutions create a moral problem that distributive justice solves. We have
duties of justice in virtue of the existence of that problem. And when our institutions
distribute justly, the problem is solved: the chosen arrangements can be justified to
each person. What justice fundamentally requires, on the view in question, is that
our institutional arrangements pass this justificatory test. Private persons lack the nor-
mative power to alter the arrangements themselves. So the only way they can contrib-
ute to just distribution is by supporting the creation of arrangements that distribute
justly. It is simply not possible to reduce injustice in ways that are not institutionally
mediated. Doing so does not address the problem to which principles of distributive
justice respond.

III
The debate between Dualists and Monists is a debate about application. It is a debate about
whether moral norms that apply to officials in their official capacity also apply to us in our
capacity as private persons. A second debate is about grounds. That debate concerns
whether moral norms that apply to officials in their official capacity apply to them in
virtue of moral norms that apply to us in our capacity as private persons. Moralists say
they do. Realists deny this.
Moralism is not the view that becoming an official makes no difference. Many officials
take oaths of office they would not otherwise take. Many acquire power over others’ lives
that they would not otherwise have. We are subject, in our private lives, to norms that give
these facts moral significance. Keep your promises. Help where you can. With great power
comes great responsibility. Pick your favourite examples. Moralism is the view that if

5
For this idea, see Rawls (n 3) 268–9; Thomas Nagel, Equality and Partiality (OUP 1991) ch 6.
6
See Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33(2) Philosophy and Public Affairs 113; AJ Julius, ‘Basic Structure
and the Value of Equality’ (2003) 31(4) Philosophy and Public Affairs 321.
 JURISPRUDENCE 279

moral change does occur when we step into official roles, it must be traced back to moral
norms like these, to which we were already subject.7
Moralism is not the view that officials should enact or enforce morality. It is not the
view that our moral duties should be made legal duties, or that breach of those duties
should be punished. Whether Moralism has these implications depends on the content
of morality. More precisely, it depends on whether the morality applicable to us in our
private lives is a morality that supports its own enactment or enforcement by officials.
Moralism takes no position on this issue. It only tells us how those who support enactment
or enforcement would need to go about defending their view.
Realists deny Moralism. They do so in two ways. The first denial has it that (at least
some) moral norms, which apply to officials in their official capacity, are not grounded
in moral norms that apply to private persons. Call this Addition. The second denial has
it that (at least some) moral norms, which apply to private persons, cease to apply to offi-
cials for reasons that cannot be traced back to the aforementioned moral norms. Call this
Subtraction.8
Dualism is compatible with both Realism and Moralism. If one is a Dualist, one thinks
that there are duties of justice applicable to officials alone. According to one explanation,
these duties form part of an autonomous set of norms for politics, the grounds of which
are independent of moral norms that apply to private persons. On a rival explanation,
there are duties of justice that apply to officials alone precisely because moral norms appli-
cable to private persons call for this to be the case. The first view combines Dualism with
Realism. The second combines it with Moralism.

IV
These debates about distributive justice, I will later suggest, can help us make progress with
the asymmetry that is our topic. First, a little more about the asymmetry itself.
As section I claimed, criminal law gives state officials (and some of their delegates)
powers and permissions that are much more extensive than those given to private
persons (who are not delegates). To confer a power is to enable the power-holder to
change someone’s normative position, including by adding to the duties they have. To
grant a permission is to change the normative position of the permission-holder, by
removing duties they would otherwise have had. Powers and permissions do not always
go together. We sometimes exercise powers in breach of duty, as when a court decision
that binds the parties is taken in breach of a precedent that binds the court. And we some-
times fail to exercise powers without breaching any duty at all, as when two parties form a
contract that is not binding because they did not provide consideration.9
The criminal law confers numerous powers and grants numerous permissions and I
will focus on just a few. To fix ideas, imagine Bill is suspected of committing robbery.
Bill is then (i) frisked, (ii) forcibly arrested, (iii) detained for questioning, (iv) compelled
to attend trial and (v) imprisoned as a punishment. The legal significance of all this
7
For something like this view, see John Gardner, ‘Criminals in Uniform’ in RA Duff, Lindsay Farmer, SE Marshall, Massimo
Renzo and Victor Tadros (eds), The Constitution of the Criminal Law (OUP 2013) 51–80.
8
For a view that apparently combines both, see Bernard Williams, In The Beginning Was the Deed (Princeton University Press
2005) ch 2.
9
As there is no legal duty to make binding contracts, the law permits one not to do so.
280 J. EDWARDS

depends on who takes each step. We can see this by distinguishing between two versions of
the scenario.
In the first, a police constable searches Bill because she has reasonable grounds to
suspect that Bill possesses stolen goods.10 The search turns up reasonable grounds to
suspect Bill of robbery, so Bill tries to scarper. The police constable then uses reasonable
force to arrest Bill.11 Having been taken to the police station, Bill is detained without
charge for a day, because the custody officer has reasonable grounds to believe that this
is necessary to gather evidence.12 Bill is then charged with robbery and instructed to
appear in court to enter a plea. He refuses, so the police use reasonable force to secure
his presence.13 Bill is found guilty of robbery and sentenced by the judge to four years
in prison. He is locked up by prison officers for the duration of his sentence.
In this version of the scenario, those who take steps (i) to (v) comply with their legal
duties. They act within the scope of the permissions they are granted by the criminal
law, including when they use force against Bill to further their aims. What’s more, their
actions impose certain legal duties on Bill. Among other things, Bill must submit to the
search, show up for the arraignment and remain in his cell. He must do so in virtue of
the legal powers conferred by the criminal law on the police, on courts and on prison
officers.
Things are different in a second version of the scenario. In this version steps (i) to (v)
are taken by Clare, who is a private person (and no delegate of the state). In taking these
steps, Clare breaches numerous legal duties. She commits battery by frisking Bill, even if
she has reasonable grounds to suspect him of possessing stolen goods. She falsely impri-
sons Bill by detaining him for a day, even if she does so in order to gather evidence of
crime. The same is true when Clare forces Bill to attend a trial she holds in the moot
court at her local university. It is clearly false imprisonment for Clare to lock Bill up for
years as a punishment for robbery. It might be said that arrest is different. Anyone is
empowered to arrest those reasonably suspected of an indictable offence like robbery,
and anyone is permitted to use reasonable force to assist in bringing an arrest about.14
This is true enough. But the conditions attached are more stringent in the case of
private persons (who are not delegates). We are empowered to make arrests, and per-
mitted to use force to assist in making them, only if it is not reasonably practicable for
the police to do so instead.15 These conditions do not apply in reverse. So many arrests
that would be perfectly lawful if made by a constable, remain serious crimes if carried
out by the rest of us.
These remarks show that Clare lacks permissions to take steps (i) to (v) that are granted
to some state officials (and delegates). She is subject to legal duties that they are not. Nor
do her actions add to Bill’s duties in the manner described previously. Bill has no duty to

10
For the relevant provision in English law, see Police and Criminal Evidence Act (PACE) 1984, s 1.
11
See PACE 1984, s 24(2) and Criminal Law Act (CLA) 1967, s 3.
12
See PACE 1984, s 37(2).
13
Failing to appear is a crime under the Bail Act 1976, s 6, so reasonable force can be used to prevent it under CLA 1967, s 3.
14
One might argue that this latter fact also renders (i) and (ii) lawful. But this seems to me doubtful. Frisking someone, or
detaining them, does not itself assist in bringing about an arrest (though it may generate evidence that ultimately helps
make an arrest lawful). So neither is likely to be covered by the permission mentioned in the text. Even if I am wrong, an
asymmetry remains for reasons given in the text that follows this note.
15
And only if there is a risk that the arrestee will cause harm or abscond: PACE 1984, s 24(A). As Lord Hoffman put it in Jones
[2006] UKHL 16, ‘when law enforcement officers, if called upon, would be in a position to do whatever is necessary, the
citizen must leave the use of force to them’.
 JURISPRUDENCE 281

submit to being searched by Clare, to show up at the moot court or to remain in Clare’s
custody. The lesson of all this is as follows. Criminal law grants some state officials (and
some of their delegates) both powers and permissions that it denies to the rest of us. They
are powers and permissions designed to help bring about a just response to crime. Let us
call this Asymmetry. Most people believe that Asymmetry is justified. Our question is what
that justification is.
Before moving on, it is worth distinguishing our question from a question nowadays
discussed under the heading of privatisation. That is the question of whether certain activi-
ties can justifiably be delegated to others by the state. When we ask whether Asymmetry is
justified, we can remain neutral on this issue. Our interest is in not in whether search,
arrest, detention, trial and punishment are non-delegable. It is rather in the justification
of criminal laws that apply differently to two groups: those who are neither state officials
nor delegates, on the one hand, and those who are one of the two, on the other.
Our question is somewhat neglected in discussions of the criminal law. One expla-
nation of this neglect is the thought that the question simply cannot arise. There are
two reasons why this might be the case. According to the first, giving private persons
additional powers and permissions—to search, arrest, detain, try or punish criminals—
just is delegating those activities to those persons. So there is no question of eliminating
Asymmetry by extending the powers and permissions of private persons. This just
amounts to a further delegation.
In reply, to empower or permit B to do X is not always to delegate X to B. For A to
delegate to B is for A to authorise B to act on A’s behalf. Now we are often empowered
or permitted to act on behalf of persons other than those who confer the power or
grant the permission. Take the case of parents. The law gives parents power over their chil-
dren that others lack, and permits them to do things to their children that others may
not.16 It thereby authorises parents to act in ways that help them raise their children. It
does not follow that state officials who make such laws thereby delegate the raising of chil-
dren to parents. This would follow only if parents were authorised to raise their children
on the state’s behalf. Now imagine the state authorises private persons to search, arrest,
detain, try or punish criminals under the same conditions as state officials.17 For the
reason just given, it does not follow that it thereby delegates those activities to those
persons. One can search, arrest, try, detain or punish without acting on behalf of the
state. Imagine this is what Clare does. We want to know what justifies making Clare’s
activities criminal, in circumstances in which they would have been perfectly lawful
were Clare an official (or delegate) of the state.
There is another explanation of why some might claim that our question does not arise.
This second explanation has two variants. According to the first, criminal law just is a body
of law in which officials (and delegates) benefit from extra powers and permissions to
search, arrest, detain, try and punish criminals. If this is right, there is no question of
whether we should have criminal law without Asymmetry. A body of law without
Asymmetry simply would not be criminal law. According to the second variant, criminal

16
The parental right to chastise, for instance, remains part of English law (H [2002] 1 Cr App R 59), though that right does
not extend to the infliction of actual bodily harm (Children Act 2004, s 58).
17
Here and below I use ‘authorise’ as convenient shorthand. A authorises B to punish C, as I understand the term, if A grants
B a permission to impose punishment on C, and confers power on B to give C duties that contribute to C being punished.
282 J. EDWARDS

punishment just is hard treatment imposed by or on behalf of the state.18 If this is right,
there is no question of whether we should reduce Asymmetry by authorising private indi-
viduals to punish criminals on behalf of (say) victims. Hard treatment of this kind simply
would not be criminal punishment.
These definitional claims seem to me doubtful. But their truth is irrelevant here. If
either turns out to be correct, our question can simply be rephrased. Take a body of
law that lacks Asymmetry but is otherwise identical to criminal law. Call it shriminal
law. Take hard treatment that would be criminal punishment if imposed by or on
behalf of the state, but which is imposed by and on behalf of (say) victims. Call it flutish-
ment. We can now ask two questions. Are we justified in having criminal law and not
shriminal law? Are we justified in prohibiting flutishments while permitting criminal pun-
ishments? To ask these questions is simply to ask our original question in different terms.
In what follows, I continue to use my initial formulation. Nothing turns on this choice
here. To claim otherwise would be to rely on the ‘abuse of definition’ which HLA Hart
helpfully labelled the ‘definitional stop’.19 Hart’s point was that we cannot defend the
claim that only the guilty should be punished by defining punishment in such a way
that it cannot be imposed on the innocent. That point applies mutatis mutandis to
what I am calling Asymmetry.

V
To justify Asymmetry is to justify a set of legal rules. Two dimensions of the moral assess-
ment of rules are worth distinguishing. The first concerns the moral valence of the activi-
ties subject to the rules. The second concerns the morally significant effects of those rules.
Ceteris paribus, is harder to justify prohibiting activities that are morally permissible or
morally required. And it is harder to justify prohibitions that do great harm to others.
The two dimensions I have distinguished are, of course, related. The fact that following
the rules of the road improves driver safety—a morally significant effect—can help
make it wrongful to violate the rules—altering the moral valence of drivers’ actions.
This does not mean that there is no distinction to be drawn.
Our concern is with rules that regulate (i) search, (ii) arrest, (iii) detention, (iv) trial and
(v) punishment. Those rules give powers and permissions to some, while withholding
them from others. To work out whether these rules are justified, we can start by asking
what justifies engaging in the activities they regulate.20 This obviously furthers our assess-
ment of the moral valence of each activity. And as one possible effect of authorising an
activity is that we end up with more of what justifies the activity itself, it is also relevant
to our assessment of the morally significant effects of the rules.
Consider first how the activities in question relate to one another. On one view, activi-
ties (i) to (iv) are precursors to activity (v). It is worth investigating crime, and trying sus-
pected criminals, because this paves the way to the imposition of justified punishment.
18
Alon Harel appears to take a view of this kind. He claims that private individuals ‘simply cannot punish, as their acts do not
constitute punishment’: Alon Harel, Why Law Matters (OUP 2014) 72. Later he writes that private individuals can punish,
but not for crimes (ibid 96).
19
HLA Hart, Punishment and Responsibility (2nd edn, OUP 2008) 6.
20
By asking what justifies an activity, I mean to ask what gives us defeasibly sufficient reason to engage in it. A reason, r, is a
defeasibly sufficient reason to do X if it is not a necessary condition of the permissibility of doing X that there be any
additional reason to do X, and if r is capable of being defeated by reasons not to do X.
 JURISPRUDENCE 283

Investigations and trials are conducted to identify those on whom punishment is justifi-
ably imposed, while keeping the risk of unjustified punishment within acceptable
bounds. Let us call this the punitive view.21 Notice that this view says nothing about
what justifies punishment. It merely tells us that the criminal process is to be justified
in punitive terms.
On a rival view, (i)–(iii) are precursors to (iv). But it is a mistake to see (iv) as a mere
precursor to (v). This is so for two reasons. First, criminal trials have value that is inde-
pendent of any contribution they make to the imposition of punishment. Trials are valu-
able in their own right, not merely because they deliver justified punishment at an
acceptable cost.22 On one version of this view, trials have such value because they
involve defendants offering accounts of themselves that, as responsible agents, they
have reason to offer. Second, the contribution trials make to the justification of punish-
ment is not merely instrumental. On the punitive view, the facts that make punishment
fitting (say, culpable wrongdoing) obtain independently of the trial itself. We use trials
to work out whether those facts are present in D’s case. On the rival view, the fact that
D has been tried and found guilty is itself part of what makes it fitting that D is punished.
One explanation of this runs as follows. The fitting way to respond to criminal wrong-
doing is to call the wrongdoer to account for her wrong. To call D to account is both
to try to (a) get D to answer for her wrongdoing (as occurs at trial) and (b) get D to con-
front wrongdoing for which she has no satisfactory answer (as occurs when D is pun-
ished). On this view, it is only because D has first been tried and found guilty that
punishment counts as a fitting response to D’s wrong.23 Call the view described in this
paragraph the curial view.
On both the views I have mentioned, some of (i) to (v) have a type of justificatory pri-
ority. Instances of (i) to (iii) are justified on the grounds that they bring about instances of
(iv) and/or (v). The same is not true in reverse. On a third view, there is no such priority.
Each activity is justified on the grounds that it reduces the need to engage in any of them.
What makes each activity worthwhile, in other words, is the contribution it makes to pre-
venting crime.24 Though investigation may lead to trial and punishment, it should do so,

21
Michael Moore takes this view. See Michael Moore, Placing Blame (OUP 1997) ch 1.
22
John Gardner and Antony Duff have both defended this view. Gardner writes that ‘even if for some reason we abolished
the whole apparatus of criminal sentences and civil remedies, we should still think twice about abolishing the trials them-
selves. In fact one important (although not sufficient) reason for having the apparatus of criminal sentences and civil
remedies is to motivate the trials’: see John Gardner, Offences and Defences (OUP 2007) 190–91. Duff claims that we
should conduct trials not because ‘this is the most efficient way of identifying the perpetrators who are then to be pun-
ished’ but because conducting them ‘is the appropriate way for a liberal polity to respond to alleged violations of its
public values’. For him ‘the criminal trial is perhaps the central feature of a system of criminal law’: see RA Duff, ‘Relational
Reasons and the Criminal Law’ in Leslie Green and Brian Leiter (eds), Oxford Studies in the Philosophy of Law (OUP 2013)
195–6.
23
According to Duff, offenders deserve ‘to be called to account by those who business [their offending behaviour] is’.
What’s more, we should ‘understand criminal punishment as continuous with the criminal trial: as a forceful way of
trying to persuade the offender to confront the wrong that she committed (to answer adequately for a wrong must
involve facing up to it), and to make appropriate moral reparation to those she has wronged’: see Duff, ‘Relational
Reasons’ (n 22) 205. Gardner appears to agree. For him, criminal law ‘is primarily a vehicle for the public identification
of wrongdoing (by certain standards of evidence and procedure) and for responsible agents, whose wrongs have been
thus identified, to answer for their wrongs’ (emphasis in the original); ‘[c]riminal law can be a proper vehicle for condem-
nation, deterrence and punishment only because it is a vehicle for responsible agents to answer’: see Gardner, Offences
and Defences (n 22) 80.
24
This may have been Hart’s view. For him, we have but one reason to make wrongs crimes, and to punish those who
commit them: to reduce the future incidence of those wrongs. This is compatible, of course, with the existence of con-
straints that limit our ability to conform to preventive reasons. See Hart, Punishment and Responsibility (n 19) ch 1.
284 J. EDWARDS

on the view in question, only if trial and punishment are needed to prevent crime. If inves-
tigation alone sufficed to deter potential wrongdoers, there would be no case for proceed-
ing further. Call this the pure prevention view.
Elements of all three views might be combined. I return to this possibility below. Whether
individually or in combination, however, these views are incomplete. The punitive view
gives priority to the imposition of justified punishment. But it does not tell us what justifies
the imposition. The curial view emphasises the value of accounting for wrongs, and of
calling people to account for them. But it does not tell us why it is good that wrongdoers
account, or that others call them. The pure prevention view refers us to the prevention of
crime. But it does not tell us why crime is worth preventing. Above, we set ourselves the
task of explaining what justifies activities (i) to (v). We now have three accounts of the func-
tion those activities fulfil in our criminal justice systems. None of the three tells us why ful-
filling that function is of value. To complete our task, we must address this question.
Different answers offer us different ways of defending Asymmetry. To see this point, we
need to make a brief detour into the theory of value. We can then return to the criminal law.

VI
There is value that can be brought into existence only by certain agents. There is value in
promisors keeping their promises, and in players being loyal to their team. Others can
make it more likely that these goods will come into existence. But they cannot bring
them into existence themselves. They cannot keep promises they did not make. They
cannot be loyal to a team that is not theirs. As well as good things of this kind, there
are also bad things. It is bad for promisors to break their promises, and for players to
betray the trust of their team. Others can make it more likely that these bad things will
come into existence. But they cannot break promises they did not make. They cannot
betray trust that was not given.
Call goods and bads of this kind personal. Other goods and bads are impersonal. Any
agent might bring them into existence. Anyone can kill me, as well as prevent me being
killed. Anyone can make something beautiful, as well as destroy beautiful things. These
claims about what ‘can’ be done are claims about what can be done in principle. That a
good (or bad) is impersonal does not mean that every agent is equally well-placed to
achieve it. Some are better (or less well) able to achieve impersonal goods (or bads), or
are able to achieve them (only) at lower (higher) costs. This does not mean that the
goods (or bads) in question are any less impersonal.
There are also hybrid cases. Here, the personal is parasitic on the impersonal.25
Imagine Dave attacks Chris and breaks his arm. We do not need to know anything
about Dave to know that his actions are bad. It is impersonally bad to harm another,
by breaking their arm. But Dave’s actions are worse still if Chris was his teammate
or friend. Why are they worse? Because we have additional duties to protect our
teammates and friends against harm. To harm one’s teammate or friend is to do
the very opposite of what these duties would have one do. And to do the opposite
of one’s duty is to breach it in a way that is particularly bad.26 That particular
25
Some would claim that this is always so. My claim is only that it sometimes is.
As Gardner, ‘Criminals in Uniform’ (n 7) 106, explains: ‘[i]f one has a duty to protect someone from killing, one breaches it
26

in an especially grave way by killing that same someone oneself. For doing so is not a mere failure in, but rather an
 JURISPRUDENCE 285

badness is personal to teammates and friends because only they can bring it into
existence. But it is parasitic on the impersonal badness of causing others harm. If
it was not bad for one person to break another’s arm, it would not be especially
bad for Dave to break Chris’s. More generally: it is only because it is impersonally
bad to harm anyone, that it is particularly bad for teammates and friends to harm
one another.
The existence of personal goods opens up the following possibility. There may be
goods that can only be delivered—even in principle—by the state. Such goods would
be personal to state officials (and, perhaps, their delegates). Call them essentially
public goods. These goods offer us a first explanation of Asymmetry. According to
that explanation, criminal law responds to a moral problem that only essentially
public goods can solve. We can justify activities (i) to (v) only by appealing to such
goods. Ex hypothesi, they are goods that it simply is not possible for private persons
(who are not delegates) to deliver. This is why the powers and permissions available
to state officials (and their delegates) are not available to the rest of us. Like the
second explanation of Dualism identified in section II, this justification appeals to
value that it is impossible for private persons (who are not delegates) to realise. Let
us simply call it Impossibility.
A rival explanation appeals to goods that that are not essentially public. Such goods are
often of great value, and it is often difficult to deliver them without incurring high costs.
Criminal law, according to this explanation, is a way of delivering these goods. We have
reasons to believe that the costs of delivery are lower—and the delivery rate higher—when
Asymmetry obtains: when state officials (and their delegates) have powers and permissions
that private persons (who are not delegates) lack. Though the resulting delivery mechan-
ism is by no means perfect, it is the least imperfect available to us. Like the first explanation
of Dualism identified in section II, this justification appeals to the idea that some norms
help us realise value more efficiently than we would in their absence. Let us simply call it
Efficiency.
The distinction between Efficiency and Impossibility cuts across the distinction, drawn
above, between the punitive, curial and pure prevention views. It also cuts across the dis-
tinction, often drawn in the literature, between justifications that appeal to intrinsic value,
and those that appeal to instrumental value. To see this, consider punishment. Michael
Moore argues that what justifies punishment is its intrinsic value: the value of giving offen-
ders their just deserts.27 Victor Tadros argues that what justifies punishment is its instru-
mental value: the value of preventing wrongs that offenders have enforceable duties to
prevent.28 Despite this disagreement, both offer Efficiency explanations of Asymmetry.
Both argue that what justifies giving state officials (and delegates) powers and permissions
to punish—while withholding them from others—is that doing so delivers more of the jus-
tifying value at a lower cost.29

inversion of, one’s duty as protector. Killing A is as far away from protecting A from being killed as one can get. And the
further away one gets from doing one’s moral duty, all else being equal, the morally worse one’s breach of duty is.’
27
Moore, Placing Blame (n 21) chs 2–4.
28
Victor Tadros, The Ends of Harm (OUP 2012) ch 12.
29
Michael Moore, ‘A Tale of Two Theories’ (2009) 28 Criminal Justice Ethics 27, 42; Tadros, The Ends of Harm (n 28) 302–307.
286 J. EDWARDS

VII
Different versions of Impossibility appeal to different moral problems. One is the problem
of securing our independence from the power of others. Think of the master and the slave.
The latter is dependent on the former, however benevolent her master may be. She is
dependent because she has no legal rights—to her person or to property—that can be
enforced by her or others against her master. In the absence of a legal system, some
claim, we face a generalised version of this problem. Lacking enforceable legal rights,
we are each like the slave: however benevolent others may be, we are dependent upon
their continued benevolence. And until others have such rights, we are each also like
the master: however benevolent we may be, others are necessarily dependent upon us.30
We need a legal system to solve this problem. And that system must be of the right kind.
It must contain rules that protect persons and their property. And it must provide for coer-
cive enforcement when those rules are violated. Coercion is needed to reassert the primacy
of the rules in the face of wilful breach, and to reassure the law-abiding that future violations
are unlikely.31 Only then is our independence from one another secure. Punishment helps
do the reasserting. Investigation, trial and punishment provide reassurance. Activities (i) to
(v) are justified, on this view, when and because they help free us from our dependence on
one another. The moral problem is solved, however, only if each activity remains in the
hands of the state. Coercion that secures independence must be imposed in the name,
and on behalf, of all who are coerced. Otherwise it is just another independence violation.
Only state officials (and perhaps their delegates) can speak for all of us.32 This explains
why they alone are authorised to engage in activities (i) to (v).33 It is a first Impossibility
explanation of Asymmetry.
Consider now a very different moral problem: the problem of remaining true to oneself
in the face of wrongdoing. Many of us think of ourselves in value-laden terms. We self-
identify as kind, fair, honest, loyal, liberal, egalitarian and so on. These, we sometimes
say, are our values. Now values give us reasons, some of which add up to duties. Part of
valuing kindness (fairness, honesty etc) is doing what reasons of kindness (fairness,
honesty etc) would have one do, at least where nothing of comparable importance is at
stake. Some reasons of kindness are duties not to be unkind. Others are reasons to
respond to unkindness in others. There are difficult questions to ask about these respon-
sive reasons—about when they rise to the level of duties, and about exactly what kind of
responses they require. Let us grant, however, that there are cases where kindness requires
the following: that we call the unkind to account for their unkindness, and thereby com-
municate to them our judgment that their actions are wrong. For we who think of

30
For this view, see Malcolm Thorburn, ‘Constitutionalism and the Limits of the Criminal Law’ in RA Duff, Lindsay Farmer, SE
Marshall, Massimo Renzo and Victor Tadros (eds), The Structures of the Criminal Law (OUP 2011) 98; Arthur Ripstein, Force
and Freedom (Harvard University Press 2009) 15ff.
31
See Thorburn, ‘Constitutionalism’ (n 30) 101; Ripstein (n 30) 314–22.
32
‘Unlike any private actor, the state claims to speak in the name of everyone’s claim of freedom equally. For this reason, the
state is the unique instrumentality through which we may collectively ensure our freedom as independence’: Thorburn,
‘Constitutionalism’ (n 30) 98.
33
One might point out that, as we saw above, private persons are empowered to make arrests, and are permitted to use
force to assist in making them. But all may not be as it seems. Thorburn argues that we are not granted these powers and
permissions as private persons, but as stand-in officials. This is why the powers and permissions in question are available
only when officials are not in a position to act. See Malcolm Thorburn, ‘Justifications, Powers and Authority’ (2008) 117
Yale Law Journal 1070.
 JURISPRUDENCE 287

ourselves as kind, failing to act in such cases is a form of self-betrayal: it is a failure to be

not only who we want to be, but who we believe we already are.
Though I have focused on individuals, my comments also apply to communities. Many
communities are defined by their members in terms of certain values. Many members
define themselves partly in terms of their membership. If these communities and
members are to stay true to themselves, they must actually value these defining values.
If life is one such value, the community must respond when a member takes life, or has
her life taken.34 In some cases, we are assuming, it must call the killer to account, and
thereby communicate the community’s judgment that the killing was wrong. Failure to
do so is another instance of self-betrayal: it is a failure of the community, and its
members, to be what they believe themselves to be.
Some claim that criminal justice solves this moral problem as it applies to political com-
munities. Activities (i) to (v) serve to call criminals to account.35 When criminal wrongs
breach duties that find their source in the community’s defining values, calling wrong-
doers to account enables the community to remain true to itself.36 But the problem is
solved only if the calling to account is done in the political community’s name and on
its behalf. Were things otherwise, calling suspected criminals to account would not com-
municate the judgment of the community. It would only communicate the judgment of
some individual or other group. Only state officials (and delegates) can act in the name,
and on behalf, of the political community. So private persons (who are not delegates)
cannot solve the moral problem to which criminal justice responds: it is not possible
for them to communicate what needs to be communicated.37 This explains why powers
and permissions given to state officials (and delegates) are withheld from private
persons (who are not delegates). It is a second Impossibility explanation of Asymmetry.

VIII
What should we make of the two versions of Impossibility I have identified? Notice first that
neither offers a complete explanation of Asymmetry. The first appeals to the idea that it is
wrong for private persons (who are not delegates) to coerce others, because the former
do not act in the name, and on behalf, of the latter. Let us assume that this is correct.
Now recall that Asymmetry is an asymmetry of both power and permission. The permissions
in question are permissions to use force to search, arrest, detain etc. The powers in question
are powers to impose duties on those searched, arrested, detained etc. It is plausible to think
that the wrongness of private coercion explains why private persons (who are not delegates)
34
What about killings that do not involve members at all? Must communities that value life respond here too? Perhaps this
depends on the responses of communities to which killer and killed belong.
35
Giving us a version of the curial view.
36
For this suggestion, see RA Duff and SE Marshall, ‘Public and Private Wrongs’ in James Chalmers, Fiona Leverick and
Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010) 82–85.
37
In ‘Relational Reasons’ (n 22) 206, Duff writes that ‘[b]oth [D’s] trial and his punishment, as communicative endeavours, must
speak to him in the voice of his fellow citizens, since only in that voice can they have the appropriate meaning that renders
them legitimate; trial and punishment must, therefore, be administered by or with the authority of his fellow citizens.’ The
reference to administration by citizens might seem to suggest that private citizens (who are not delegates) could legiti-
mately punish wrongdoers themselves. But Duff immediately makes clear that this is not what he has in mind: ‘vigilante
“punishments” lack this essential legitimizing dimension: they cannot do what justice demands, or impose what the wrong-
doer deserves. Vigilantes might claim that they are calling wrongdoers to account, especially if the “punishments” they
impose flow from a kangaroo court; they might even claim to be acting in the name and on behalf of the polity whose
criminal justice system has (they argue) failed to bring this wrongdoer to book: but they lack the standing to do this.’
288 J. EDWARDS

should lack permissions to use force that are granted to officials (and delegates). What it
does not explain is why private persons (who are not delegates) should also lack powers
that officials (and delegates) possess. That one possesses a power does not entail that one
is permitted to enforce the duties created by its exercise. The law can confer powers liberally
while jealously guarding permissions to use force. To justify the latter is not to justify a
refusal to do the former. So it is not yet to explain Asymmetry.
Something similar goes for the second version of Impossibility. This version appeals to
the idea that if criminal proceedings are to communicate the judgment of the community,
state officials (or delegates) must call suspected criminals to account. Let us grant that this
explains why criminal courts benefit from powers and permissions withheld from moot
courts set up at local universities. What it does not explain is why private persons (who
are not delegates) should lack powers and permissions to arrest, search and detain. To
engage in these activities is not yet to call anyone to account.38 So the aspect of Asymmetry
that pertains to arrest, search and detention remains in need of explanation.
Worries about completeness aside, there are other difficulties with both versions of
Impossibility. According to each:
(A) There are essentially public goods;
(B) Delivering those goods justifies authorising activities (i)–(v);
(C) Activities (i)–(v) are only justifiably authorised on this basis.

Though one might challenge (A) and (B),39 my interest here is in (C). Imagine we could
prevent a great deal of harm by arresting, searching, detaining, trying and punishing
those who commit some wrong. Preventing harm is not an essentially public good.
Why can’t it justify authorising the arrest, search, detention, trial and punishment of
wrongdoers?40 Defenders of Impossibility need an answer. I will consider two suggestions.
One appeals to functions. Another appeals to roles. Neither, I will suggest, is convincing.

Functions
Claims about the functions of a body of law can be definitional or normative. Definitional
claims state that laws which do not fulfil some function(s) are not part of the body of law.
Normative claims state that such laws should not be. Functions can be distinctive, or they
can be shared. A distinctive function helps distinguish a body of law from others. A shared
function is common to a number of bodies of law.
Many claim that criminal law has a distinctive function.41 Some claim that fulfilling this
function is of value because it delivers essentially public goods. Let us grant the second
claim. If the first claim is definitional, it does nothing to support (C). Imagine we authorise
38
We can, after all, engage in all three without putting anyone on trial, and without ever intending to do so.
39
One worry about (B) is the suggestion that wrongs like murder, rape and theft, considered in and of themselves, do not
matter to the criminal law. To accept (B) is to hold that what justifies authorising activities (i)–(v) is some larger social
good: a framework of rules that secures each person’s independence, or a community that remains true to itself.
Where it will not achieve that good, there is no case for authorisation. But it is hard to believe that murder, rape and
theft are not of interest to the criminal law in their own right. It is hard to believe that preventing, or holding people
responsible for, such wrongs cannot itself justify authorising the arrest, search, detention, trial and punishment of wrong-
doers. That (B) instrumentalises criminal law’s concern with wrongdoing in this way is one reason to reject it.
40
Including in cases where this does not deliver essentially public goods.
41
See eg Moore, Placing Blame (n 21) 29; RA Duff, ‘Responsibility, Citizenship and Criminal Law’ in RA Duff and SP Green
(eds), Philosophical Foundations of Criminal Law (OUP 2011) 126.
 JURISPRUDENCE 289

arrest, search, detention, trial and punishment on harm-preventive grounds. Grant that
doing so does not fulfil criminal law’s distinctive function, so the laws we create are not
criminal laws. This does nothing to show that we are not justified in creating them. To
claim otherwise is to return to the definitional stop.
Normative claims are more promising. One might claim that there is no reason to use
criminal law in ways that do not fulfil its distinctive function. So the fact that authorising
activities (i) to (v) would deliver impersonal goods—like harm prevention—is itself no
reason for law-makers to authorise them. Hence (C). This argument fails. We have
reason to use things to fulfil shared functions as well as distinctive ones. The distinctive
function of a hammer is to drive nails into holes. But if I need a bookend, and have
nothing else to hand, I also have reason to use my hammer to prop up books on my
shelf. This is true even if using the hammer as a bookend makes it less good at driving
nails.
It might be said that criminal law is different. People are wronged when criminal law is
not used to fulfil its distinctive function. This is not necessarily true of hammers. One
explanation has it that criminal law’s distinctive function is to call to account, or
punish, wrongdoers. We wrong people by calling them to account, or punishing them,
for conduct that is not wrong. Even if this is correct, it only shows that criminal law
must operate within certain constraints. It does not show that the only goods that can
justify its operation are essentially public. Another explanation has it that criminal law
puts control of whether wrongdoers are called to account in the hands of state officials
(and delegates). Taking control away from victims of wrongdoing is itself pro tanto
wrong. It is justified only if calling the wrongdoer to account is necessary for the commu-
nity to stay true to itself. In the next section I offer a rival justification of state control. The
point to note here is this: even if the aforementioned justification is sound, it does not
support (C). What it gives us is an explanation of why it is sometimes wrong for state offi-
cials (and delegates) to engage in activities (i) to (v) in a manner that is insensitive to the
wishes of victims. It does not give us an explanation of why it would be wrong for victims
(or their supporters) to arrest, search, detain, try and punish. So we are yet to see why the
harm that victims (and supporters) might thereby prevent cannot justify giving them
powers and permissions that would help them prevent it. Absent that explanation, we
lack reason to accept (C).

Roles
Perhaps we have been looking for the required explanation in the wrong place. If
anyone is to be authorised to engage in activities (i) to (v), it is law-makers who
must confer the relevant powers and grant the relevant permissions. Law-makers are
themselves officials of the state. So what they are justified in doing depends on what
the state can justifiably do. And the state’s moral concerns, some say, are limited to deli-
vering essentially public goods. On one version of this view, those concerns are limited
to securing our independence from the power of others, and do not extend to how
people exercise that independence once they have it.42 It follows that law-makers can
justify authorising activities (i) to (v), only when and because this helps free us from

Thorburn, ‘Constitutionalism’ (n 30) 99.

42
290 J. EDWARDS

our dependence on one another. We are freed only if it is state officials (and delegates)
who engage in each activity. So only they should be authorised to do so. We should
therefore accept (C).
There is an apparently simple response to this line of thought. To borrow a phrase from
Joseph Raz, law-making officials ‘are humans too’; ‘being human, they are subject to mor-
ality’.43 It is not true that morality tells us to concern ourselves only with securing inde-
pendence. Once we have abolished slavery, we should tackle wrongdoing that follows in
emancipation’s wake. Doing so need not involve violating anyone’s independence. But
even where it does, morality does not give independence absolute priority. Some lack
the capacities on which independence depends. They are unavoidably dependent upon
others.44 Just as we have moral reasons to free the potentially independent, so we have
moral reasons to protect the unavoidably dependent. Imagine that the only way to
prevent great harm to the latter is to have the former give up a portion of their indepen-
dence.45 If the portion is not too great, it is hard to believe that morality would not require
that it be given up.
It may be said that this response trades on an ambiguity. No-one is claiming that law-
makers are not subject to morality. What is being claimed is that the morality to which
law-makers are subject is the morality of their institutional roles. It is because those
roles are part of the apparatus of the state that the moral concerns of law-makers are
more limited than those of the rest of us. This is why (C) is true.
Whether this response succeeds depends on how we think about role morality.46 Con-
sider two views. According to the first, we must build the moral position of role-occupants
from the ground up. Moral norms apply to role-occupants only if this is part of the best
understanding of what the role requires. We can unpack this line of thought a bit as
follows. Working out what an institutional role requires is an interpretative exercise: we
ask which set of requirements best serves the point of the institution to which the role
belongs. Imagine the point is to distribute justly. The requirements of the role are those
that best serve distributive justice. Being called for by that ideal, said requirements are
themselves norms of justice. What role-occupants should do is determined by these
moral norms. Though there are moral norms of other kinds—of charity, humanity, kind-
ness etc—these have no force for role-occupants, because the interpretative exercise does
not incorporate them into the relevant role. Call this the incorporation view.
On the incorporation view, moral norms must be plugged into a role before they
become applicable to role-occupants. What gets plugged in depends on our interpretation
of the institutional context within which the role exists. This line of thought may explain
why some are tempted by what I earlier called Subtraction. According to this brand of
Realism, moral norms that apply to private persons (at least sometimes) cease to apply

43
See Joseph Raz, ‘Incorporation by Law’ (2004) 10(1) Legal Theory 1, 2. Raz elaborates as follows: ‘suppose, for example,
that morally, if I learn about a person’s intentions in confidence I should not tell people about them. If so, then it makes
no sense to say: Morally speaking, I should not tell people about his intention, but luckily morality does not apply to me. It
has no jurisdiction over me. If I know that it is morally wrong of me to tell people, and so on, or even if I do not know it
but can know it, then it does apply to me.’
44
This includes some non-human animals and those with severe cognitive disabilities.
45
For compelling examples, see Victor Tadros, ‘Independence without Interests’ (2011) 31(1) Oxford Journal of Legal Studies
193.
46
I learned much about this topic from Leslie Green, ‘Law and the Role of a Judge’ in KK Ferzan and S Morse (eds), Legal,
Moral and Metaphysical Truths (OUP 2016) 323–41.
 JURISPRUDENCE 291

to officials for reasons that cannot be traced back to those moral norms. They cease to
apply for the simple reason that they were never incorporated in the first place.
A rival view is different. On that view, the moral position of role-occupants has its foun-
dations already built in. Everyone agrees that we are subject to moral norms the moment
before we step into our roles. On the incorporation view, the task is to explain why any of
these norms continue to apply to role-occupants. On the rival view, the task is to explain
why they do not. Absent a moral case for their disapplication, the norms to which we were
already subject continue to apply to us when we step into our roles. Imagine again that the
requirements of a role are those that best serve distributive justice. When they step into
their roles, occupants gain moral reasons to conform to those requirements. But these
role-given reasons must compete with reasons—including reasons of charity, humanity,
kindness etc—that role-occupants bring with them from the outside. These other
reasons may be outweighed or excluded or cancelled. But we have no reason to think
that they are always defeated or disapplied. Everything depends on the force and
content of the moral reasons that are in competition.47 On the rival view, then, roles do
not incorporate but rather modulate morality. Let us call this the modulation view.
A complete account of role morality is beyond the scope of this paper. Let me simply
mention one reason to doubt the incorporation view. To see that reason, notice that we
often criticise role-occupants by reference to unincorporated moral norms. Yet it makes no
sense to criticise someone for not doing as a norm requires if that norm has no force for
them. So the fact that we often take such criticisms to be not only intelligible but decisive,
already suggests that we reject the incorporation view. This point is clearest in the case of
roles that no-one should occupy, like Ku Klux Klan member, Gestapo officer and Guantanamo
torturer. It would be no response for occupants of these roles to reply to moral criticism by
pointing out that their roles do not incorporate the moral norms on which the criticism is based.
It might be said that those who occupy such roles can be criticised for occupying them in
the first place. Consider instead, then, the role of Community Support Officer (CSO) as it
exists in England and Wales. This is not a role that no-one should occupy. But criticism
grounded in unincorporated moral norms appears to remain apt. Take a real-life
example: in 2007, two CSOs refused to try to rescue a child drowning in a pond in
Wigan, and instead radioed for an emergency ambulance crew that arrived too late.48
According to their superiors, the CSOs acted precisely as their role required. CSOs are
not trained to deal with emergencies of this kind, but to seek help from paramedics. None-
theless, the CSOs were publicly criticised by the Home Secretary, for whom they were
morally required to attempt a rescue ‘as human beings, never mind the job’. Our interest
here is not in whether the Home Secretary’s criticism was justified on the facts of the
case. It is in the fact that the Home Secretary could sensibly offer his criticism even while
agreeing that the role of CSO required that no rescue be attempted. This matters here
because if the incorporation view is correct, it made no sense to criticise the officers in
the way the Home Secretary did: for minding too much about institutional roles, and
too little about unincorporated moral norms. This made no sense because, on the incorpor-
ation view, such norms simply have no force for role-occupants. If one thinks, however,

47
This is the natural view to take if one endorses what I earlier called Moralism.
The case is discussed in Kimberley Brownlee, ‘Responsibilities of Criminal Justice Officials’ (2010) 27(2) Journal of Applied
48

Philosophy 131.
292 J. EDWARDS

that the Home Secretary’s criticism was not nonsensical—if one thinks, as the Home Sec-
retary thought, that it makes sense to invoke unincorporated moral norms to criticise role-
occupants—one must reject the incorporation view.49
How does all this bear on the debate about how best to justify Asymmetry? Remember
that according to (C), we can justify authorising activities (i) to (v) only by appealing to
essentially public goods. Defenders of Impossibility need a defence of this claim. That
defence is far less likely to be forthcoming, it seems to me, if the modulation view is
correct. On that view, it is a mistake to start with the limits of the state’s moral con-
cerns—identified in the abstract—and use these to trace the limits of the moral concerns
of its officials. Rather, we should start by accepting that the state cannot act other than via
officials, and that officials are people who bring moral concerns with them to their insti-
tutional roles. This fact places limits on how restrictive the state’s moral concerns can be.
Most importantly, it requires that a moral case be made against role-occupants acting as
they otherwise would—against them acting for reasons given by goods that are not essen-
tially public, reasons they bring with them from life outside their roles. This view makes
defending (C) an uphill battle. We already saw that impersonal goods (including protect-
ing vulnerable individuals whose incapacities render them unavoidably dependent) often
give us strong moral reasons for action. The only way to conform to these reasons may be
via activities (i) to (v).50 If the modulation view is correct, it is hard to see why such reasons
don’t sometimes justify officials in authorising each activity. If they do, (C) is false.

IX
Let us now turn from Impossibility to Efficiency. According to Efficiency, what justifies
Asymmetry is that it results in the delivery of more goods, that are not essentially
public, at a lower cost. The present section sketches one version of this view.
Many discussions of criminal law focus on what happens once crime has been com-
mitted. It is not hard to see why. The functions criminal law fulfils in response to crime
are the source of its distinctiveness. It does not follow that criminal law’s distinctive func-
tions are its most important. Bodies of law, like many other things, have both primary and
secondary functions. Primary functions are those we have most reason to want the law to
fulfil. Secondary functions are those we have reason to want the law to fulfil if it fails to
fulfil its primary functions. Criminal law’s primary functions are preventive. We can
see this by considering two possible worlds. In the first, there are no murders, robberies
or rapes. In the second, all murderers, robbers and rapists are arrested, detained, tried
and punished. Ceteris paribus, we have most reason to want criminal law to bring
about the first world. We have reason to want it to bring about the second only if it
fails to bring about the first.51 This was a point that HLA Hart saw clearly:
49
Could one not intelligibly criticise the officers for failing to step out of their role while still endorsing the incorporation
view? No. One can only step out of a role if one presently occupies it. And if the incorporation view is correct, those who
occupy a role simply are not subject to unincorporated moral norms. So it does not make sense to criticise them for failing
to step out.
50
It may be necessary, in other words, to use the criminal law not to secure independence, but to protect those who are not
capable of it. See eg the offences created by ss 30–33 of the Sexual Offences Act 2003.
51
This is not to deny that part of the case for arresting, detaining, trying and punishing criminals is to prevent criminal
wrongs. It is merely to point out that a world in which prevention is achieved in this way is a world in which the criminal
law has already partially failed (because it is a world in which some crime has occurred).
 JURISPRUDENCE 293

the characteristic technique of criminal law is to designate by rules certain types of behaviour
as standards for the guidance either of the members of society as a whole or of special classes
within it: they are expected without the aid or intervention of officials to understand the rules
and to see that the rules apply to them and to conform to them. Only when the law is broken,
and the primary function of the law fails, are officials concerned to identify the fact of breach
and impose the threatened sanctions.52

Preventing crime often prevents both harms and wrongs. Some think crimes should
always be such that preventing them prevents both. Others think we can sometimes
dispense with one or the other. We need not resolve this debate here. On either
view, it is good to prevent crime. It is bad for people to suffer harm, and it is bad
when people act wrongly. We can add that criminal wrongs should not be wrongs
of just any kind. Many worry that if we bring criminal proceedings in order to
prevent crime, we treat criminals as mere means: we try and punish them partly in
order to deter others. The objection fails if offenders have duties that will be dis-
charged only if they are tried and punished, and if the harm done to offenders is
harm they have a duty to suffer.53 For this reason, many claim that we should crim-
inalise a wrong only if those who commit it incur duties of the aforementioned kind.54
It is bad for us to have duties that will be discharged only if we suffer harm.55 So it is
bad for us to commit wrongs that are defensibly criminalised. This is one reason why
it is good to prevent them.
Authorising activities (i) to (v) helps criminal law fulfil its primary functions. It makes it
more likely that people will conform to the law. This does not commit us to the pure pre-
vention view. We can accept that criminal law has secondary functions that are not pre-
ventive, including helping wrongdoers discharge duties they have in virtue of wrongdoing.
Authorising activities (i) to (v) also helps criminal law discharge these duties, and fulfil
these further functions.
Notice that none of the goods I have mentioned is essentially public. In principle,
anyone might prevent crime, and thereby prevent harm and wrongs. Anyone might
help wrongdoers discharge duties they have in virtue of wrongdoing. What, then,
justifies Asymmetry? We can begin to answer by considering a world in which Asym-
metry is reversed. In that world—call it Reverse—private persons (who are not del-
egates) are authorised to engage in activities (i) to (v), but state officials (and
delegates) are not. We have reason to think Reverse would be in many ways
worse. Consider:

(1) Expertise—most of us are not competent to determine when crimes have been com-
mitted, or to track down those who have committed them. In Reverse, we would fail
to detect many wrongs, and erroneously detect others. We would often be unable to
52
HLA Hart, The Concept of Law (3rd edn, OUP 2012) 39.
53
We do not use others as mere means by harming them if this is necessary to discharge duties they have, and if the harm is
harm they have a duty to suffer.
54
There is disagreement about the precise content of the duties wrongdoers incur. Moore writes of duties to allow ourselves
to suffer, Duff of duties to answer, Tadros of duties to protect and Gardner of duties to regret. All agree that trial and
punishment are at least sometimes necessary if these duties are to be discharged. See Moore, Placing Blame (n 21)
171–2; Tadros, The Ends of Harm (n 28) ch 12; Duff, ‘Responsibility, Citizenship and Criminal Law’ (n 41) 140; John
Gardner, ‘Wrongs and Faults’ in AP Simester (ed), Appraising Strict Liability (OUP 2005) 75–77.
55
We must either suffer the harm, or breach a(nother) duty. We have reason to regret breaching duties, and it is worse for
us to live with such reasons than to live without them.
294 J. EDWARDS

track down wrongdoers, and those we tracked down would often be innocent of
wrongdoing;
(2) Disruption—the problem is not only that we lack expertise. Doing criminal justice
takes up time, energy and resources. In Reverse, we would need to devote our
own. We would have to choose between giving up on criminal justice, or pursuing
it at a significant cost to ourselves;
(3) Futility—when accused of wrongdoing—particularly by perfect strangers—many of
us do not react well. We are defensive, or evasive or indifferent. Knowing this is true
of ourselves qua accused, we can have little confidence that we would fare well qua
accusers. Our attempts to call wrongdoers to account in Reverse would often be futile
as a result;
(4) Aggravation—we might, of course, try to force suspected wrongdoers to account for
their wrongs. We might also attempt to punish those who lack satisfactory answers.
This is a recipe for disaster. Retaliation would be all but inevitable. Those claiming to
do justice would respond in kind. The result would be a downward spiral that left all
worse off;56
(5) Conflict—some wrongs breach duties owed to many people—think of failing to pay
tax, or setting off explosives in crowded malls. In Reverse, different groups (acting on
behalf of different victims) would likely seek to bring proceedings in response. At
best, efforts would be duplicated and resources wasted. At worse, there would be
continuous conflict between groups seeking to exercise control;
(6) Incentives—many wrongs can be committed without anyone being harmed, or
without anyone even knowing that the breach occurred. Such wrongs often create
great risks of harm—think of dangerous driving, or failed attempts to kill. In cases
like this, private persons often lack incentives to track down the wrongdoers and
bring them to justice. In Reverse, many who created the risks in question would
then be left to create them again;
(7) Power and influence—it is harder for some victims to seek justice than it is for others.
Some are trapped in abusive relationships with those who wrong them. Others are
easily manipulated into thinking they made everything up. Some are outsiders
who tend to be easily dismissed by others. And some wrongdoers can use wealth
and social status to stop accusers in their tracks. Absent powerful supporters of
their own, victims in Reverse would often struggle to get justice;
(8) Inequality (1)—the point is not only that poor and vulnerable victims would be unli-
kely to succeed in calling wrongdoers to account. It is also that the rich and powerful
would be less likely to be called. The distribution of criminal justice would be highly
unequal as a result;
(9) Inequality (2)—set aside the obstacles certain wrongdoers can place in the path of
their victims. Another obstacle to criminal justice derives from the need to punish
proportionately. If private persons were permitted to punish, it is highly unlikely
that those similarly placed would be punished similarly. So Reverse would be
likely to include a great deal of disproportionate punishment;

56
This point is developed at length in Christopher Heath Wellman and A John Simmonds, Is There a Duty to Obey the Law?
For and Against (CUP 2005) 8–10.
 JURISPRUDENCE 295

(10) Corruption—once we are authorised to arrest, search, detain etc, our reasons for
doing so may not be what they should. We may arrest people not because we
suspect them of wrongdoing, but because we have scores to settle. We may put
people on trial not to get answers but to take others down a peg or two. We may
focus our punishments not on the lives of offenders, but on maximising our profit
margins. We may do a great deal of harm to others as a result, without doing
much justice in the process.57

I have listed 10 problems we have reason to think we would face if Asymmetry were
reversed. The case for Asymmetry is that it represents the least imperfect solution to
these problems that is available to us. It enables criminal law to better fulfil its func-
tions—both primary and secondary—at a lower cost in other values.
To be clear, my claim is not that Asymmetry is the best option in all possible worlds. We
need public officials of a particular kind if they are to be part of the solution to the pro-
blems described above. In the societies in which we live, there are police forces, customs
officers, tax inspectors and others to investigate and gather evidence; public prosecutors to
determine which cases it is worth taking to court; and courts in which defendants are tried
and sentenced. All need adequate training, powers and resources. They must be subject to
the oversight needed to prevent powers from being abused and resources from being
squandered. When this is so, problems (1) and (10) are ameliorated: we have a relatively
reliable means both of detecting wrongdoing and of apprehending wrongdoers; and we
have reason to think that this means is unlikely to be corrupted. Putting all this in
place helps bring about a valuable division of moral labour: while officials go about
seeking justice on behalf of the rest of us, we can get on with our own lives.58 This
helps resolve the dilemma mentioned in (2). And it also helps with problem (6). Officials
can be given incentives to pursue wrongdoers irrespective of the harm caused by wrong-
doing. They may then pursue cases to which private persons would have been unwilling to
devote their time and energy.
This is not yet enough. Norms and practices that secure the independence of officials—
both from private individuals and from each other—are needed to help overcome pro-
blems (7) and (8). Co-ordination between officials working in different places, with differ-
ent priorities, is needed to help with problems (5) and (9). Problems (3) and (4) are among
the most intractable. But they are less pressing when officials are well-regarded by the
communities in which they operate: when police officers are respected by those they inves-
tigate; when court proceedings retain enough of their ‘black magic’ to pre-empt retalia-
tion.59 Where this is so, answers are more likely to be given by those accused of
wrongdoing, and proceedings are less likely to end in violent confrontation between
accuser and accused.
Whether we benefit from institutions and officials with these attributes is largely a
matter of good fortune. Where we do, officials (and, perhaps, some delegates) are
57
I owe the last two points to Moore, ‘A Tale of Two Theories’ (n 29) 42.
58
On dividing moral labour more generally, see Samuel Scheffler, ‘Egalitarian Liberalism as Moral Pluralism’ (2005) 79 Aris-
totelian Society Supplementary Volume 229.
59
I borrow the term ‘black magic’ from Gardner. What Gardner has in mind is the ability of courts, via their ‘heavily cere-
monial processes and practices’, to imbue trials with sufficient symbolic significance that victims and their sympathisers
(even when disappointed) will not feel the need to take matters into their own hands: see Gardner, Offences and Defences
(n 22) 237.
296 J. EDWARDS

rightly authorised to engage in activities (i) to (v). More crime is likely to be prevented
(thereby preventing harms and wrongs). More criminals are likely to do what they have
duties to do in virtue of their criminality (whether that be regret, answer, protect or
suffer).60 And all of this is likely to come at a lower cost (including to those who need
no longer seek criminal justice themselves).
This is not yet, of course, to explain why private persons should not benefit from the
same powers and permissions. But we have already seen what the likely costs of this
would be. Private investigation, trial and punishment would often be misdirected, to
the detriment of those who committed no wrong. Difficulties of co-ordination, and the
danger of corruption, would remain. And the ability of the courts to pre-empt retaliatory
escalation would be drastically reduced. In short, problems (1), (4), (5), (9) and (10) would
persist. It is the value of remedying these problems (and no doubt others) that provides the
second half of the justification of Asymmetry.
Lest the last paragraph be misunderstood, there is no perfect remedy for the ills I have
discussed. What justifies Asymmetry—to repeat—is that it represents the least imperfect
solution we can muster. It is true, of course, that the set of powers and permissions
given to officials (plus delegates)—and withheld from private persons (who are not del-
egates)—varies across legal systems. So there are different versions of Asymmetry. To
endorse Efficiency is to hold that we should choose between these versions in the following
way: by asking which will enable criminal law to fulfil its (primary and secondary) func-
tion in the least imperfect way; by asking which will deliver the goods at the lowest cost in
other values.61
One final point. In the previous section I promised an explanation of why state officials
(and delegates) have control over criminal proceedings. We are now in a position to offer
that explanation. Imagine first that victims had the right to discontinue proceedings initiated
by officials. As Tadros points out, giving victims this veto would give offenders an incentive
to intimidate or manipulate them into exercising it.62 For reasons given above, this would be
especially detrimental to the poor and vulnerable, and especially advantageous to the rich
and powerful. The latter group would be able to use the veto to avoid having to discharge
duties they incur by committing wrongs. The deterrent force of the criminal law would
be correspondingly reduced, leaving the former group especially poorly protected against
criminal wrongdoing.
Imagine instead that victims were given the opposite veto—a right to continue proceed-
ings that officials wish to stop. Many victims of criminal wrongdoing suffer great trauma,
and some are understandably reluctant to allow wrongdoers to escape responsibility. For
this reason, a right to continue would likely be exercised where the chances of justice are
extremely low, and the costs excessively high. There are many other goods things that can
be done with the state’s limited resources. That we can understand why victims would
wish to use those resources to pursue criminal proceedings, does not mean that we
should give them the right to do so. It is worth adding that victims may not always be

60
See n 54 above.
61
It is in this way that we should approach the question of private prosecution. While some legal systems empower private
persons to initiate criminal proceedings in their own right, others do not. Whether our legal systems should contain this
power—according to Efficiency—depends on whether it is part of the set of powers and permissions that is least imper-
fect in the sense described in the text.
62
Tadros, The Ends of Harm (n 28) 296.
 JURISPRUDENCE 297

motivated by justice. A right to continue is a right that amplifies the destructive effect of
jealously, envy and other vices. This is a second reason not to give victims that right.

X
The previous section sketched a version of Efficiency. I conclude with two objections to
that view offered by defenders of Impossibility.

Politics
Some claim that Efficiency is insufficiently political. Having considered one version of that
view, Duff writes that it ‘does not take seriously enough the essentially political character
of criminal law’.63 It is not clear what to make of this objection. Do we take the political
character of criminal law sufficiently seriously only by appealing to essentially public
goods? If so, the objection begs the question. It assumes the truth of Impossibility, and
the falsity of Efficiency.
Perhaps, then, the thought is simply this: an adequate justification of Asymmetry must be
sensitive to the fact that criminal law is part of the apparatus of the state. Efficiency is not,
however, insensitive to this fact. It simply offers a rival account of its significance to that
offered by Impossibility. What is significant is not that the state can deliver goods only it
can deliver. It is that the state is often best placed to deliver certain goods. The difference
between Efficiency and Impossibility is not that one ignores politics, and the other does
not. It is that they disagree about the way in which politics matters.
It is tempting to think that a defender of Efficiency must appeal only to impersonal
goods. This is not so. Consider the following claims about the state. First, the state is
the servant of its people. Second, the state is a servant only. As Nagel puts it ‘[i]nstitutions,
unlike individuals, don’t have their own lives to lead’.64 If these claims are accurate, states
have additional duties—over and above those we have as private persons—to put all those
in the jurisdiction in a position to live good lives. There is, of course, disagreement about
whether the state must leave it to each person to decide what a good life amounts to. But
even if it must, few would deny that the state’s duties as servant extend to protecting its
people against harm. When states harm their people, they do the very opposite of what
these duties would have them do. So they breach their duties in a way that is particularly
bad. This makes harm done by the state what I earlier called a hybrid case: a case in which
the personal is parasitic on the impersonal.
This matters here for the following reason. Whenever we do criminal justice, we do a
great deal of harm in the process. This includes harm done to people who did nothing
wrong. For the reasons given in the previous paragraph, it is worse for the state to
inflict this harm upon us. This might seem like a case against putting the job of doing
criminal justice in the hands of states and their officials. But in fact it is the opposite.
When states arrest, detain, try and punish their people, the moral stakes are especially
high. If D is innocent and is harmed by the state, an especially serious wrong is
committed. The same is true if the state fails to protect D against harm it could easily

Duff, ‘Relational Reasons’ (n 22) 200.

63
64
Nagel, Equality and Partiality (n 5) 59.
298 J. EDWARDS

have prevented.65 So when state officials are responsible for doing criminal justice, they are
under extra rational pressure to do the job well—to prevent us being wrongfully harmed
by others, and to avoid wrongfully harming us themselves. This is precisely the kind of
pressure we should want to be placed on those we permit to arrest, try, detain and
punish.66 So it is an extra reason to keep the business of criminal justice in the hands
of the state. Notice that these remarks do not depart in any way from what I have been
calling Efficiency. They merely suggest an additional reason to expect it—in this context
—from the state.

Contingency
Recall the Efficiency explanation of Dualism. According to that explanation, principles of
distributive justice that apply to officials do not apply to private persons. The duties those
principles impose are delegated by the latter to the former. This frees us up, in our private
lives, to pursue our goals and conform to our other responsibilities. Liam Murphy objects
that this explanation fails in non-ideal conditions. If our delegates are failing to do the job
we delegated to them, why doesn’t the responsibility for doing that job revert to us?67
One objection to the Efficiency explanation of Asymmetry has a similar structure: it
seeks to capitalise on the fact that criminal justice is inevitably non-ideal. There will inevi-
tably be cases in which state officials (and their delegates) are unable to do criminal justice,
or able to do it only at a high cost. If the goods that justify permitting activities (i) to (v) are
not essentially public, it seems obvious that there will be some cases in which private
persons (who are not delegates) are best placed to deliver them. Because such cases
exist, so the objection goes, we must treat it as ‘an open question’, one ‘to be decided
on the balance of reasons in the particular case’, ‘whether the state or private citizens
should be the one to run trials, and to punish wrongdoers’.68 But we cannot simul-
taneously treat this is an open question and prohibit engagement in activities (i) to (v)
by private persons (who are not delegates). To justify Asymmetry we need to justify
such a prohibition. Efficiency fails to do just that.
In reply: recall that to justify Asymmetry is to justify a set of legal rules. To show that we
are justified in enacting a rule that does not admit of exceptions does not require showing
that the moral norms that favour enactment are also without exception. We can justify
enacting an exceptionless rule by appealing to the effects of enactment. As Les Green
explains:
There can be reasons to promulgate, and attempt to conform to, an absolute norm even if the
reasons that justify having a norm in that field are defeasible. We may conform better to
underlying (defeasible) reasons if we treat certain norms as indefeasible, and a good way
to encourage treating them as indefeasible is for them to be promulgated in absolute form.

65
As the state has greater resources, its protective duties have wider scope. The claim in the text is that they also have
greater stringency, because it is part of the role of the state to protect its people.
66
Consider an analogy: one reason to put control over prescription drugs in the hands of doctors is that they have greater
expertise. Another is that the role of a doctor is to care for and treat her patients. As a result, doctors have additional
duties to provide us with sound medical advice, and to refrain from advising us to do things that make our health
worse. These duties put them under additional rational pressure to make the right choices when it comes to prescription
drugs. That pressure is a second reason to put control of those drugs in doctors’ hands.
67
Murphy, ‘Institutions and the Demands of Justice’ (n 4) 278–84.
68
Thorburn, ‘Constitutionalism’ (n 30) 92.
 JURISPRUDENCE 299

‘No smoking’ is the right categorical imperative to have in various circumstances; but it
would be silly to think that the underlying reasons to avoid exposing others to smoke are
absolute in force: pleasure to the smoker can outweigh trivial risks to the bystander. The
absolute ban, however, protects us from the common errors of judgment, temptations of self-
ishness, etc. that would make ‘Smoking permitted when reasonable’ a poor norm to have.69

Green’s remarks help us see why the contingency objection fails. Grant that there are some
cases in which private persons are better placed to deliver the goods that justify authorising
activities (i) to (v). It does not follow that they should be so authorised. I have already
argued that if private persons (who are not delegates) were given the same powers and per-
missions as state officials (and delegates), this would likely result in errors and abuses that
do a great deal of harm. This is a powerful reason not to give such powers and permissions.
We can now restate the Efficiency argument for Asymmetry. Law-makers have powerful
reasons to authorise activities (i) to (v). Chief among these are reasons to prevent harms
and wrongs. We have reason to believe that law-makers cannot conform to these reasons,
while protecting us against the errors and abuses to which private persons are susceptible,
if private persons freely engage in activities (i) to (v). This is what justifies prohibiting
private engagement. So Efficiency does not imply that the law should treat it as an
‘open question’, ‘to be decided on the balance of reasons’, whether officials (and delegates)
or private persons (who are not delegates) should engage in activities (i) to (v). In fact, it
implies something close to the opposite. It implies that the law should prohibit engage-
ment in activities (i) to (v) by private persons (who are not delegates) precisely in order
to get private persons to treat those activities as prohibited. The criminal law’s primary
and secondary functions can then be fulfilled without costs we would all incur if we did
without Asymmetry.

Acknowledgements
I am grateful to audiences at King’s College London, LUISS Guido Carli, the National University of
Singapore and Osgoode Hall Law School. Thanks to Ambrose Lee, Tarek Yusari Khaliliyeh, Adam
Perry, Andrew Simester, Malcolm Thorburn and two anonymous reviewers for written comments.

Leslie Green, ‘The Nature of Limited Government’ in John Keown and Robert George (eds), Reason, Morality and Law (OUP
69

2013).
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