by R.A. Duff. Oxford: Hart Publishing, 2007. 342 pp. Paper. $95.00/£45.00. ISBN: 9781841137537.
Reviewed by Adil Ahmad Haque, Assistant Professor of Law Designate, Rutgers School of Law – Newark. Email: adil.haque [at] aya.yale.edu.
Every account of the structure of criminal law involves an attempt to explain the content of and relationship between four basic concepts: wrongdoing, responsibility, fault, and punishment. The most ambitious accounts focus on a single concept in terms of which the others can be understood. ANSWERING FOR CRIME contains illuminating discussions of a variety of discrete issues, ranging from the relationship between attacks and endangerments to the difference between strict responsibility and strict liability, to the justification of mala prohibita crimes. But the greatest contribution of this marvelous book lies in Antony Duff’s elegant and arresting vision of criminal law’s conceptual foundation.
Duff argues that the central concept in criminal law is responsibility, understood as the legal demand to provide a rational explanation for our illegal behavior. The criminal trial is not merely an instrument for identifying dangerous individuals; it is a communicative process by which individuals are made to account for their actions to their community. The commission of criminal wrongdoing is that which the law requires us to explain; the denial of fault, through justification or excuse, is the form such an explanation must take; and punishment is the consequence of an unsuccessful explanation.
Duff is not the first criminal law scholar to understand responsibility in terms of accountability or answerability for criminal acts or to identify responsibility as a precondition for fault or liability (Gardner 2003). Nor is Duff the first to argue that to deny responsibility is generally to claim that there is no rational explanation for the offense, or that we currently lack the capacity to provide such an explanation. But Duff is the first to make substantial use of a triadic conception of responsibility according to which agents must answer for their acts to a particular audience. One feature of the triadic account is that it identifies, as denials of responsibility, bars to trial based on various features of the defendant (official and diplomatic immunity), the alleged conduct (double jeopardy, lack of jurisdiction, expiration of a statute of limitations), the prosecution’s case (lack of probable cause), or official misconduct (estoppel, entrapment). On Duff’s view, denials of responsibility include claims that the prosecuting authority has no right to call us to account in the first place.
A second feature, and a more interesting one, is that the nature of the prosecuting authority places certain internal constraints on the substantive scope of criminalization. Duff argues that, in a [*424] democratic polity, the criminal law speaks in the name of the public, and individuals are properly held responsible to the public for the wrongs that properly concern the public. This contrasts with monarchical, authoritarian, and theocratic polities in which individuals are responsible to the ruler, the state, or religious authorities. However, in a liberal polity, respect for individual autonomy and private associations requires that the only moral wrongs that properly concern the criminal law are those related to attacks upon or endangerment of the defining aims and values of the polity. This contrasts with perfectionist polities in which all moral wrongs properly concern the public.
There is a sense, then, that responsibility to is logically prior to responsibility for, for although there can be liberal monarchies and perfectionist democracies, once we identify the type of polity to whom individuals are held criminally responsible we can infer which values are to be promoted, protected, and expressed through the criminal law. So although Duff is correct to say that the bare concept of ‘the public’ cannot fix the scope of criminalization, it seems that particular political conceptions of the public can, albeit with all the indeterminacy of the aims and values which the political conception identifies.
One might think that all this is just a roundabout way of saying that the criminal law of a liberal society should reflect liberal values, but this latter formulation contains an equivocation between the enforcement of liberal morality and the restrictions of political liberalism. For instance, Michael Moore is a legal moralist who believes that all moral wrongs properly concern the criminal law, but who also believes that most impersonal moral norms (for instance regarding consensual sexual relations) simply do not exist (Moore 1998). By contrast, Duff rejects legal moralism and argues that we need not answer to the polity for genuine moral wrongs if the values they implicate, even if real and important, are not among the defining values of the polity. For Moore, autonomy and privacy are countervailing moral values that may override the duty to punish wrongdoing; for Duff autonomy and privacy are political values that determine which moral values the state should even contemplate enforcing through the criminal law.
Duff’s triadic account of criminal responsibility can be seen as part of a broader ‘relational turn’ within practical philosophy as a whole. Moral philosophers seeking to break the stalemate between agent-neutral views such as consequentialism and agent-relative views such as Kantian deontology and virtue theory have tried to recapture the interpersonal aspect of morality. “What we owe to each other” could describe the content of morality, understood in terms of directed duties to others and corresponding rights against others (Kamm 2007), or the justification of moral principles to those affected by them (Scanlon 1998). It has even been suggested that the rational authority of morality itself is grounded in relationships of authority (to make claims or demands on others) and accountability (for our responses to the complaints and grievances of others) (Darwall 2006). Within criminal law theory, a more humble attempt has been made to articulate a relational account of [*425] retributive justice according to which an offender’s violation of a victim’s right gives rise to a duty of the punishing agent, owed to the victim, to punish the offender (Haque 2005).
There is a difficulty lurking here, however, because Duff seems to embrace relational accounts of wrongdoing, responsibility, and punishment involving different relata. Duff insists that criminal wrongs are primarily wrongs to their individual victims and not to the public, and seems to agree elsewhere that punishment is owed primarily to the victim rather than to the offender (Marshall and Duff 1998, p.9), yet maintains that offenders are responsible not to victims but to the polity as a whole. Why, instead, should offenders not be responsible to their victims for the wrongs done to them and for which they may be punished? For centuries, both the common law and Islamic law relied on private prosecution by victims or their families, although in both systems it was left to judges or juries to determine whether offenders had successfully answered the charges against them. What justifies our societies in controlling the criminal process from start to finish?
Duff’s reply is that our polities are not only liberal and democratic but also communitarian. As communitarians we identify and stand in solidarity with our members when they are wronged. As liberals we respond only to those wrongs which implicate our defining values, leaving individuals to respond to other wrongs informally or through private law. Shared membership in a common civic enterprise gives the community sufficient interest both in the wrongs its members commit and the wrongs its members suffer to demand accountability for those wrongs. It is in this sense, Duff argues, that wrongs to victims are also wrongs against the polity as a whole, wrongs which the polity may prosecute and punish on behalf of the victim or on its own behalf if the victim is unwilling or unable to do so.
Just punishment, however, requires both responsibility and fault on the part of the offender. Duff’s account of criminal responsibility informs his account of fault in at least three ways. First, criminal offenses and defenses must be defined in such a way that the offense alone specifies a public wrong for which we can be held responsible by the polity; for this reason, wrong-making features of the offense may not be converted into defense elements simply to ease the evidentiary burden on the prosecution. Second, the doctrine of justificatory intent, which states that a defendant can make out a justification defense only if the considerations that justified her conduct also motivated her conduct, can be grounded in Duff’s position that criminal responsibility demands that individuals provide a rational explanation rather than a post-hoc rationalization for their illegal conduct. Finally, excuses that compare a defendant’s defective conduct with the conduct expected of a reasonable person implicitly require individuals to display a certain level of commitment to the polity’s basic values on pain of public condemnation.
There is every reason to expect that Duff’s triadic account of criminal responsibility and his conception of public wrongdoing will quickly and warmly be embraced by the community [*426] of criminal law theorists. Many will also couch their views regarding justification and excuse within Duff’s framework. It is true that, of the four central concepts with which we began, punishment receives the briefest and most oblique treatment. Some readers may wish that Duff had done more to integrate this well-known theory of punishment into his overall account, and more fully explained why the failure to provide a satisfying account of one’s wrongdoing should result in coercion and
deprivation (Duff 2001). In particular, some may feel that Duff has not yet fully explained how the public’s interest in wrongs to individual victims can be sufficiently strong to permit prosecution and punishment of offenders without the victim’s consent yet sufficiently weak that the public does not displace the victim as the source of the underlying claim that prosecution and punishment seeks to vindicate. These are important questions, but it would be ungrateful in the extreme to ask more from Duff’s magnificent book than it already provides.
Marshall, S.E., and R.A. Duff. 1998. “Criminalization and Sharing Wrongs.” 11 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 7-22.
Gardner, J. 2003. “The Mark of Responsibility.” 23 OXFORD JOURNAL OF LEGAL STUDIES 157-171.
Haque, A.A. 2005. “Group Violence and Group Vengeance: Toward a Retributive Theory of International Criminal Law.” 9 BUFFALO CRIMINAL LAW REVIEW 273-328.
Darwall, S. 2006. THE SECOND-PERSON STANDPOINT: MORALITY, RESPECT, AND ACCOUNTABILITY. Harvard: Harvard University Press.
Duff, R.A. 2001. PUNISHMENT, COMMUNITY, AND COMMUNICATION. Oxford: Oxford University Press.
Kamm, F.M. 2007. INTRICATE ETHICS: RIGHTS, RESPONSIBLITIES, AND PERMISSIBLE HARM. Oxford: Oxford University Press.
Moore, M. 1998. PLACING BLAME: A GENERAL THEORY OF CRIMINAL LAW. Oxford: Oxford University Press.
Scanlon, T.M. 1998. WHAT WE OWE TO EACH OTHER. Harvard: Harvard University Press.
© Copyright 2008 by the author, Adil Ahmad Haque.