Responsibility Citizenship and Criminal Law

Responsibility, Citizenship, and Criminal Law
University Press Scholarship Online
Oxford Scholarship Online
Philosophical Foundations of Criminal Law

R.A. Duff and Stuart Green
Print publication date: 2011

Print ISBN-13: 9780199559152
Published to Oxford Scholarship Online: May 2011
DOI: 10.1093/acprof:oso/9780199559152.001.0001

RA Duff (Contributor Webpage)
DOI:10.1093/acprof:oso/9780199559152.003.0007
Abstract and Keywords

This chapter starts with a claim about a central, distinctive purpose of criminal law one
that helps distinguish criminal law from other modes of legal regulation. It argues that a
distinctive and proper purpose of our criminal law has to do with accountability and the
attribution of responsibility. Section 2 discusses the kind of community that our criminal
law criminal law of a kind apt for a liberal republic requires, and argues that in the
context of the domestic criminal law of nation states (still the salient paradigm of criminal
law) it is the community of citizens. Anyone who gives citizenship this central significance
faces a range of objections, to the effect that such a conception of criminal law cannot do
justice to transnational criminal law, to the status of non-citizens who are either
permanent residents of or temporary visitors, or to the status of citizens who may find
themselves excluded from full membership of the polity; that it fosters a dangerous
distinction between an exclusive group of citizens, who are full members of the polity
and receive all the protections that the criminal law offers both victims and off enders,
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and a wider group of outsiders, of actual or potential enemies, to whom such
membership and protection are denied. Such objections are addressed in Section 3, and
it is argued that although the concept of citizenship can be given this unacceptably
exclusionary significance, we need not do so: we can and should retrieve a more
inclusionary conception of liberal citizenship that can structure a normatively plausible
picture of criminal law.
Keywords: criminal law, accountability, responsibility, citizenship, salient paradigm
It would be rash to posit a single, determinate purpose or function as the purpose or

function of criminal law. That would be misguided as an interpretive claim about existing
systems of criminal law: we cannot understand a set of institutional practices with as long
and complex a history as those that constitute the criminal law of any developed polity in
terms of any single purpose or function. It might seem more tempting to posit some
unitary purpose as a matter of normative theory: to argue, for instance, that the purpose
of criminal law is to maximize dominion,1 or to achieve retributive justice by securing the
punishment of moral wrongdoers.2 I cannot argue the point here, but believe that such
normative claims are also untenable: any plausible normative theory of criminal law will be
complex and messy,3 positing (p.126) a collection of purposes that cannot fit together
into a tidy whole. This chapter starts with a less ambitious claim: not about the purpose,
but about a central, distinctive purpose of criminal lawone that helps distinguish
criminal law from other modes of legal regulation.
My claim is modest in another way. To posit either the or a purpose of criminal law might
be taken to make a claim about all systems of criminal law, at all times in all places; but I
make no such claim here. My starting point is more local, with our systems of criminal law,
rather than with criminal law as such. That identifying description (our systems) is
deliberately vague: I leave open the question of how wide its extension might be, of how
large a we can join in the discussion of the purposes of our criminal law. I begin with an
imagined (though I hope not imaginary) group of potential interlocutors: of theorists who
work within the broad traditions of Western liberalism, and citizens (including theorists)
who live in polities that aspire to be liberal democracies. It would be a substantial
achievement to engage, and to secure either agreement or fruitful disagreement, with a
we of that scope. We must also hope that the conversation can expandand one task for
legal theorists is to see how far it can expand, and which other conversations they can
join. But my present concern is with the earlier stages of that processwith what a
relatively limited we can say about our systems of criminal law.
A distinctive and proper purpose of our criminal law has to do, I will argue in section 1,
with accountability and the attribution of responsibility. The criminal law provides the
institutional framework within which, and procedures through which, perpetrators of
public wrongs can be called to account (held responsible) for those wrongs. Such a
practice of calling to account is possible, however, only within a normative community to
which both called and callers can be said to belong. In section 2 I will discuss the kind of
community that our criminal law, criminal law of a kind apt for a liberal republic, requires,
and argue that in the context of the domestic criminal law of nation states (still the salient
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paradigm of criminal law) it is the community of citizens. Anyone who gives citizenship this
central significance faces a range of objections, to the effect that such a conception of
criminal law cannot do justice to transnational criminal law, to the status of non-citizens
who are either permanent residents of or temporary visitors, or to the status of citizens
who may find themselves excluded from full membership of the polity; that it fosters a
dangerous distinction between an exclusive group of citizens, who are full members of
the polity and receive all the protections that the criminal law offers both victims and
offenders, and a wider group of outsiders, of actual or potential enemies, to whom such
membership and protection are denied. I will face such objections in section 3, and will
argue that although the concept of citizenship can be given this unacceptably exclusionary
significance, we need not do so: we can and should retrieve a more inclusionary
conception of liberal citizenship that can structure a normatively plausible picture of
criminal law.
(p.127) 1 ANSWERING FOR CRIME 4

The criminal law, in its substantive dimension, defines certain types of conduct as criminal
(and defines certain defences for those who commit such criminal conduct). In so doing, it
defines and condemns such conduct as wrong: not merely, and trivially, as legally wrong,
as a breach of the rules of this particular game, but as morally wrong in a way that should
concern those to whom it speaks, and that warrants the further consequences (trial,
conviction, and punishment) that it attaches to such conduct. To say that it defines such
conduct as wrong is not, however, to say that it creates that wrongfulness: although it is
trivially true that criminal conduct is criminally wrongful only because the criminal law so
defines it, it is substantively false to say that such conduct is morally wrongful only
because the criminal law defines it as wrong. The criminal law does not (cannot) turn
conduct that was not already wrongful into a moral wrong: it does not determine, but
presupposes, the moral wrongfulness of the conduct that it defines as criminal; it
determines which pre-criminal wrongs should count as public wrongs whose
perpetrators are to be called to public account. Its adjectival dimension then specifies the
procedures through which those accused of perpetrating such wrongs are called to
account: the criminal trial, as the formal culmination of the criminal process, summons a
defendant to answer to a charge of public wrongdoing, and to answer for that
wrongdoing if it is proved; if he cannot offer an exculpatory answer, he is convicted and
thus condemned as a wrongdoer. Finally, in its penal dimension, the criminal law provides
for the determination and administration of punishments for those convicted of such
public wrongdoing.
To spell out this conception of criminal law in a little more detail, we can begin with the
familiar range of so-called mala in secrimes consisting in conduct whose (supposed)
moral wrongfulness is largely independent of the law. We do not need the criminal law to
tell us that rape, murder, and other attacks on the person are wrong. It rather takes for
granted our pre-criminal understanding of these as wrongs from which we already have
good reason to refrain, and identifies them as wrongs that are public in the sense that
they are the business of the whole polity and require a public response from the polity.5
The salient purpose of criminal law, on this view, is not directly to guide conduct (although
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the prospect of criminal liability might have that effect, and securing that effect might be a
proper purpose for criminal law); it (p.128) is to provide for an appropriate formal,
public response to the pre-legally wrongful conduct that it defines as criminal. That
response includes police action, preventive and investigative; prosecutorial action in
deciding whether and how to pursue alleged offenders; court action in trying alleged
offenders and sentencing convicted offenders; and punitive action in punishing sentenced
offenders. What is central to it, however, is holding alleged public wrongdoers to public
account. (By public wrongs, and holding to public account, I do not refer only to
wrongs committed in public or having a direct impact on the public, or only to callings
to account conducted in public, like criminal trials in open court. A domestic assault
committed in the home is as much a public wrong as an assault committed in a public
street, since it is as much a wrong that properly concerns all members of the polity: to call
a wrong public in this sense is not to give a reason for the public to take an interest in it,
but to express the judgment that it is their business.6 An offender who receives a formal
caution, or a prosecutor's fine,7 without going to court is still called to public account, by
an authorized public official, whose actions are subject to public scrutiny, acting on behalf
and in the name of the polity.)
It might seem that even if this account of criminal law can deal with mala in se, it cannot
cope with so-called mala prohibita, which are orthodoxly understood as offences
consisting in conduct that is not wrongful prior to its legal proscription.8 But it can make
room for mala prohibita (though we should not expect it to justify the vast range of such
offences found in our existing laws) once we distinguish the question of regulation from
that of criminalization. There are two routes to criminalizationmore precisely, two
routes to the determination that we have good reason in principle to criminalize a
particular type of conduct (the question of whether we should, all things considered,
criminalize that conduct raises further very complex issues). One begins with
wrongfulness: we ask of some kind of pre-legally wrongful conduct whether it involves a
type of wrong that is in principle the polity's business, and that merits public
condemnation as a wrong; we thus identify a category of potential mala in se.9 The other
route starts with a decision that we have (p.129) reason to regulate a particular type of
conduct, a reason that does not depend on the wrongfulness of such conduct. We have
good reason, for instance, to regulate driving; and while some of the regulations that we
may introduce will be grounded in pre-legal moral demands (as speed limits are
grounded in the demand to drive safely), others (such as regulations concerning driving
licences or vehicle registration) cannot be seen as formalized versions of such moral
demandsindeed, it is, often impossible to engage in the conduct prohibited by the
regulation prior to the regulation's existence. Now such regulations must of course be
justified by showing, as with any legal regulation, that they serve an aspect of the
common good. But that justification need not be grounded in the supposed pre-legal
wrongfulness of the conduct in question; nor have we yet asked how the regulations
should be enforced, or how we should respond to breaches of them. The question of
criminalization comes up only when we ask that latter question; and we have good reason
to criminalize such breaches if and only if, given the regulation and its justification, a
breach of it constitutes a moral wrong for which the perpetrator should be called to
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public account.10
That is why it is misleading to say (as it is often said) that the substantive criminal law
consists in prohibitions: for that implies that the criminal law seeks to make wrong what
was not wrong before, or to offer us new reasons (reasons grounded in its authority or
power) to refrain from the conduct that it criminalizes. What is distinctive about criminal
law, what marks it out from other modes of legal regulation, is that rather than prohibiting
or requiring conduct, it defines certain types of conduct that are already supposedly
wrongful as wrongs of a kind that call for a particular kind of responsea response that
formally condemns that conduct, and that seeks to call its perpetrator to public account:
criminal law is focused on the polity's formal response to the conduct with which it deals.
It is thus significant from this perspective that criminal codes are not typically cast in the
language of prohibitions: they rather tell us that a person is guilty of a specified offence if
(Model Penal Code); or commits an offence if (a standard formula in English
statutes); or that [w]hoever acts in a specified way shall be liable to a specified
punishment (German Strafgesetzbuch); or that certain kinds of act constitute a specified
offence, or are punished by a specified kind and degree of sentence (French Code
Pnal).
It might seem that what is most distinctive of the criminal law's response to crime is that it
involves punishment: this is explicit in the formulations of French and German law, and is
perhaps implicit in the formulations of English and American law. It is true that punishment
is a significant aspect of our formal responses to (p.130) crime: any adequate theory of
criminal law must either explain the legitimizing rationale of punishment or show how
criminal law can do without it. But the criminal process that connects crime to punishment
is an independently significant dimension of the formal response for which the criminal law
provides. A criminal trial (the most publicly visible manifestation of the criminal process) is
not just a procedure through which punishments are allocated to those who supposedly
deserve them. It is best understood as a process through which alleged offenders are
called to answer or to account: to answer to the charge of wrongdoing (initially by
pleading Guilty or Not Guilty); and then, if the prosecution proves that they committed
the offence charged, to answer for that commissioneither by offering an exculpatory
defence, or by accepting the condemnation that a conviction expresses.11
The criminal process is not the only legal process through which people may be called to
answer. Some civil cases have this character, at least in the eyes and intention of those
who bring them: their aim is not so much to secure the compensation that provides their
suit's formal focus, as to bring to account those whom they hold responsible for the loss
they have suffered. First, however, a civil case is formally focused on providing remedies
rather than on calling anyone to account: the question is who should bear the cost of the
harm that must be repaired or averted. Second, the formal focus is on harms rather than
wrongs: even if fault, and thus wrongdoing, is a condition of civil liability, the focus is on
paying for the harm for which the defendant is culpably responsible rather than on the
wrongfulness of his conduct.12 Third, the case is brought by the allegedly injured
Page 5 of 25

claimant: although the law enables her to pursue the complaint, it is her case; it is to her
that the defendant (if liable) owes explanation, apology, and compensation. In many
criminal cases there is also a direct victim to whom the defendant owes something,13 and
there is much to be said about the role of victims in the criminal process: but the case is
brought by the state or the polity, not by the direct victim; the defendant is called to
answer by and to, not (just) the direct victim, but the whole polity. That is the force of
calling crimes public wrongs: they are wrongs in which the whole polity takes a proper
interest, not simply by providing the institutions through which victims can pursue their
offenders, as the civil law does, but by calling the offender to answer for a wrong that is
public rather than private.
If this is right, however, it raises a further important question about the criminal law: who
calls the alleged wrongdoers to account; to whom must they answer?
(p.131) 2 CRIMINAL LAW AND CIVIC COMMUNITY

A central purpose of criminal law which distinguishes it from other modes of legal
regulation is to provide for those who commit public wrongs to be called to public
account for what they have done. Now any account of criminal law raises questions about
who has the authority to do what to whom: whether we see criminal law as, for instance, a
technique for preventing harm by deterring or incapacitating potential harm causers, or
as a method of ensuring that wrongdoers suffer the punishments they deserve, we must
ask not only who should be subject to the criminal law's coercive attention, but who is
authorized to coerce them, in whose name. An account focused on calling to account
raises such questions very directly. We must ask, of course, who is called to account; and
the obvious first answerthose who commit public wrongscannot be a full answer,
since any plausible criminal process must also summon some innocents to answer to
criminal charges. So we need an account of the conditions given which people who might
well be (and must be presumed to be) innocent may be subjected to investigation and
prosecution; of the procedures through which people may be called to answer; and the
conditions given which they may be convicted. But we must also ask by, and to whom,
they are called to account. For accounting is a two-way relationship: A is called to answer
by and to B, who claims the right thus to hold A to account. When A is the defendant in a
criminal trial, who or what is B?
Furthermore, a practice of calling to account presupposes a community to which caller
and called belong, within which this process makes sense. More precisely, it must
presuppose a linguistic and normative commonality; and a substantial community, though
not necessarily one to which caller and called both fully belong.
It must presuppose some linguistic and normative commonality because when B calls A to
answer, the legitimacy (indeed, the intelligibility) of that calling depends on A being able to
understand and respond: it makes no sense to call someone to answer if that person
cannot do so.14 But the calling (and answering) must then be conducted in a language
that, even if it is not As (or Bs) own language, is accessible to him either directly or,
failing that, through an interpreter. It also requires that the values by reference to which
A is called to account, the values that he is accused of violating, are accessible to him as
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values that he could make his own. We call A to account for doing something that he
should not, we claim, have done, ie for acting as he had good reason not to act; but we
can say that A ought to , or has good reason to , only if that reason to is within As
conceptual and motivational grasp.15 (p.132) Furthermore, in calling A to account we
seek a response from himan answer that might involve a denial that he acted as we
allege; or a denial that he violated the values to which we appeal; or a reasoned denial of
those values; or an explanation of his action which, whilst admitting that he acted against
the reasons that we cite, seeks to justify or excuse his action; or an admission that he
acted wrongly, and an apologetic explanation of his conduct which does not seek to
exculpate him. But whatever kind of answer he is to give, he will be able to give it only if
he can understand the charge to which it is to be an answer: only if he can understand,
that is, not merely whatever factual claims we make about what he did, but the values to
which our accusation appeals, and recognize those values as imaginable sources of
reasons for action.
I won't spend longer on the need for this kind of linguistic and normative commonality
between caller and called here, because our concern is with a more substantial
requirement of community as a framework within which people can be called to account.
Calling to account involves a relationship between caller and called: a relationship which,
though it might be transformed by the calling (and answering), cannot be created ex
nihilo by this interaction. There must be some relationship between B who calls and A
who is called that gives B the right or the standing thus to call A: some relationship that
makes As alleged wrongdoing Bs business, and that entitles B to make this demand. This
is a central aspect of our dealings with each otherthat not everything is everyone's
business. If you see me in a cafe, eating a large hamburger with double chips, you might
think that I am being imprudent with my health; but if you take it on yourself to approach
me and call me to account for my behaviour, I might reasonably respond, not by
answering to you for my conduct (explaining, justifying, excusing my behaviour, or
admitting its imprudence), but by saying that it is none of your business. I answer to
some people for my dietary misconductmy family, my doctor, perhaps my friends; but
I am not answerable to you, a passing stranger.16 To show that A is being legitimately
called to account, we must show not just that there is something for which he should
have to answer, but that those who call him have the standing to do sothat it is their
business. We must therefore understand just who is calling the defendant to account in a
criminal trial; only then can we ask whether they have the appropriate standing.
It might seem that I am exaggerating the problem here. I have argued that criminal law is
concerned with moral wrongdoing (of certain kinds); but whilst my dietary or other
species of imprudence might not be a stranger's the business, surely moral (p.133)
wrongdoing is the business of every moral agent.17 So what gives us standing to call
criminal offenders to account is the fact that we are all members of the broad, indeed
universal, community of moral agents. Such a view is implied by Moore's account of the
function of criminal lawto punish all and only those who are morally culpable in the
doing of some morally wrongful act:18 if an action is made eligible for the criminal law's
Page 7 of 25

attention by its culpable immorality, it is the business of all moral agents. One question
that this suggestion provokes is whether moral wrongdoing is always the business of all
moral agents. That seems true of the most egregious moral wrongs: if I see or become
aware of a murder, a rape, a violent assault, a serious fraud, I cannot say that it is none of
my moral business and literally or metaphorically pass on by; I have reason to intervene,
or to take steps to secure intervention by others.19 But there are many wrongs in
relation to which both wrongdoer and victim can reasonably rebuff an intervener with
some version of It's not your business: the wrongdoer can argue that he is not
answerable to this stranger; nor can we plausibly explain this by saying that whilst any
other moral agent has reason to intervene, countervailing reasons often make
intervention on balance inadvisable. If I regularly fail to buy my round for the friends with
whom I drink, that is their business; but it is not even in principle the business of the
passing stranger who happens to hear about it.
However, even if all moral wrongdoing is in principle the business of all moral agents, this
does not provide a plausible account of whose business crime is: of who has the standing
to call criminal wrongdoers to account. For, first, the criminal law is not properly
concerned with every kind of moral wrongdoing: of some matters it is appropriate to say,
in a liberal polity, that they are, in brief and crude terms, not the law's business.20 It
could be argued that although all moral wrongs are in principle the criminal law's
business (there is good reason to criminalize them so that their perpetrators can be
called to account), for many kinds of moral wrong there are persuasive countervailing
reasons against criminalization:21 but it seems as implausible to say that there is reason
to criminalize my failure to buy a round as to say that it is anyone's moral business
except my friends. (p.134)
Second, domestic criminal law is limited not merely in the kinds of wrong over which it
claims jurisdiction, but in the jurisdiction it claims even over the kinds of wrong with
which it deals. If a Polish citizen attacks a French citizen in Germany, that is not a crime
for which he could be tried or convicted in an English court, even if he happened to come
to England, and sufficient evidence for a conviction was available in England. He might be
arrested, and extradited to face trial in Germany:22 but to extradite someone is not to call
him to answer in the jurisdiction from which he is extradited; it is to assist another
jurisdiction in holding him to account under its laws.
It might be argued that this is a matter of pragmatic convenience (and of international
politics). What ultimately matters is that wrongdoers be brought to account, but it is
sensible that those who are best placed to discharge this task should take charge of it;
when properly functioning nation states are able and willing to deal with wrongs
committed within their territory, they should be allowed sovereignty over these as over
other matters, and neither other states nor international bodies should have the right to
intervene.23 This provides one rationale for the Territoriality Principle, which largely
determines the issue of jurisdiction in many legal systems:24 a state's courts have
jurisdiction over all crimes committed within its territory. One way to put this point would
be to say that the offences defined by the criminal law can be committed anywhere, so
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that the Polish assailant commits the crime of wounding under English law; but that
English courts have no jurisdiction over that token of the crime. That would, however, be
misleading: criminal statutes passed by the UK legislature do not extend to other parts of
the world (they might not extend to all parts of the United Kingdom). The better way to
put the point is that an assault in Germany is not a crime under English criminal law: not
because English law permits such conduct, but because it has no authority over it and is
therefore rightly silent about it. If we ask why that should be, an obvious answer is that
this promotes the efficient enforcement of the demands of criminal justice, whilst
respecting state sovereignty: so long as a state deals efficiently with the kinds of wrong
committed within its territory that require some formal response, it should be left free to
do so; other states should not intrude by trying to deal with such wrongs themselves.
English law and courts should be allowed exclusive local jurisdiction over crimes
committed in England, if and because this is an efficient way to satisfy the (universal, nonlocal) demands of justice. Should a state utterly fail to satisfy those demands of justice,
however, other states or international bodies might be entitled to intervene. They
(p.135) hold back from claiming jurisdiction (a jurisdiction which they could in principle
have claimed) over crimes committed within another state's borders out of respect for
that state's sovereignty and a recognition that it is better placed to deal with such crimes;
but in principle that claim can be revived if that condition is not satisfied.
That answer, however, seems unsatisfying, rather as comparably impersonal accounts of
morality are unsatisfying. Moral philosophers sometimes struggle to make moral sense of
a range of partial, particular attachments that are central to our lives, but that do not fit
easily into the structure of impartialist moral theories, in particular consequentialist
theories whose grounding principle is some version of the Utilitarian maxim that our
single moral duty is to promote the greatest good of the greatest number. From the
perspective of that impersonal maxim, our particular attachments to our friends, families,
colleagues, countries seem hard to justify: surely we could often achieve more good by
benefiting strangers than by benefiting our own friends, family, colleagues, or fellow
citizens. On the other hand, and though most of us should certainly do much more than
we do for distant strangers, it is very hard to imagine a satisfactory human life without
such partial attachments: can we really accept that we act wrongly in showing preference
for friends, families, and others who are in various ways close to us?25 I cannot discuss
this question here, save to notice one kind of attempt to reconcile the demands of an
impersonalist morality with our partial attachments by arguing that we usually serve
those impersonal demands most efficiently by fostering suitable partial attachments: I
may pay special attention to my friends, my family, and so on, so long as by doing so (and
by maintaining those dispositions that lead me to do so) I am actually doing as much as
could be reasonably expected of me to advance the general good. However, apart from
doubts about the large empirical claims on which such arguments depend, they do not do
justice to the role that such attachments play in our lives: the worth, including the moral
worth, of my love for my friends or family does not depend on the contribution that such
love, or the disposition it manifests, makes to some larger, universal, general good; we
find its value within, rather than beyond, the relationships that it structures.26
Page 9 of 25

Somewhat similarly, such a pragmatic or instrumentalist explanation of the jurisdiction of
domestic criminal law should be unsatisfying for members of any properly functioning
polity. One reason for this emerges when we ask why it seemed important for Saddam
Hussein to be tried in Iraq for crimes he committed against Iraqis; or why people might
object when crimes against humanity committed within a particular nation (as happened
in former Yugoslavia, for instance) are taken over by the International Criminal Court
(ICC); or why it would have been better for (p.136) Augusto Pinochet to be tried in
Chile for his crimes against Chilean victims, rather than in a European state's courts
under a claim of universal jurisdiction; or why the victim of a serious attack (and those
close to him) might not be content to see his attacker convicted in a foreign court, even if
he was able to attend. The thought is in each case that we should try our wrongs and
their perpetrators, and that trial by some foreign or international court, even if it
produces a warranted conviction and sentence, can be at best an inadequate
substitute.27 We should try the case not because we are contingently best placed to do
so, but because it is our business in a way that it is not so especially the business of other
states or bodies. Who then is this we? It is not a we as large as humanity, or the realm
of moral agentsfor that would not explain these more local feelings. Nor is it a we as
limited as the direct victims of the crimes in question, or their families and friends: it is, I
suggest, a we consisting in all members of the political community within which the
crimes were committed, who recognize the victims as fellow members whose wrongs
they should share.
It is worth noting too that while the pragmatic account can say something both about the
authority of international criminal tribunals, and about claims to universal jurisdiction
over some crimes made by some legal systems, it cannot explain why the principles of
nationality and of passive personality should seem plausible. As to international or
universal jurisdiction, the founding statute of the ICC affirms that the most serious
crimes of concern to the international community as a whole must not go unpunished,28
and claims to universal jurisdiction typically focus on crimes of which something similar
could be said:29 a pragmatic theorist could explain such provisions by arguing that
international or universal jurisdiction is appropriate for crimes in relation to which, given
their seriousness, the demand that their perpetrators be brought to justice is so
insistent that it is worth making international provision for their punishment if the local
courts cannot (or will not) carry out that task.30 As to the principles of nationality and of
passive personality, the former gives the national courts jurisdiction over crimes
committed abroad by the state's citizens, whilst the latter gives them jurisdiction over
crimes committed abroad against the state's citizens:31 neither of these can be readily
(p.137) rationalized in terms of the efficient satisfaction of the demands of an impersonal
and universal justice.
Other explanations of a Territoriality Principle might be offered which do not appeal to any
rich notion of political community. It might be argued, for instance, that everyone living,
permanently or temporarily, in a geographical area has an interest in the enforcement
within that area of a legal system which criminalizes certain kinds of harmful wrongdoing,
and that this grounds the jurisdiction of that system's courts over crimes committed
Page 10 of 25

within that area. The interests of everyone within that area are served by a criminal law
that binds and protects them all; this gives the state in whose territory that area falls the
authority to maintain such a system of law.32 It is certainly true that we each have an
interest in being protected against the kinds of wrong that a decent system of criminal law
criminalizes; it is also true that, for many such wrongs, we have that interest whether we
are living in a state of which we are members, or are temporary residents in or visitors
to a foreign land.33 But is this enough to make sense of a state's peculiar jurisdiction over
crimes committed within its territory?
Such an account separates the state, as the source and enforcer of criminal law, from the
political community whose law (one might think) it should be, and of which the state
should be the formal manifestation: the state has, apparently, just the same relationship to
all those living within its territory. However, if we are to understand the criminal law not
simply as a set of prohibitions, but as a practice through which wrongdoers are called to
public account, we must be able to ground it in some kind of communitya we who call
them to account. This we requires not merely an aggregate of individual interests in
such matters as security, but a collective interest that is our interest.34 A collective
interest, however, requires more than a collection of people who happen to find
themselves in the same geographical territory; it requires people who can see
themselves as being engaged in a common enterprise of living not just alongside each
other, but together. People who happen to be thrown together might form some such
common enterprise (as they do, with greater or lesser success, in films about
castaways), and the criminal law can strengthen such an enterprise: but it must
presuppose an already existing we, an already existing (even if partly aspirational)
community whose law it is. Nor can that community be simply a moral community to
which all rational agents, or all human beings, belong.35 The intelligibility of such an allembracing community is crucial to the (p.138) prospects of a cosmopolitan political
theory,36 and perhaps to the ambitions of the ICC, if we take the Preamble to the Rome
Statute seriously.37 But systems of domestic criminal law are the laws of smaller
communities than that; and since the criminal law is part of the apparatus of the state,
they belong to political rather than to purely moral communities: the criminal law's
community must be a polity.
That is why I have argued previously that we should appeal to citizenship as the basis of
the community on which criminal law depends.38 There are two stages to this argument.
The first claim is that any system of criminal law requires a political community whose law
it is: a we whose business the criminal law declares certain kinds of wrong to be, to
whom those who commit such wrongs must answer. That is the we over whom the law
primarily claims authority; and since the criminal law is an aspect of the state, the we
must be the members of the polity whose state it is. Furthermore, criminal law is an
ongoing, not just a momentary, enterprise: it involves laws, not mere orders; institutions
and procedures, not merely ad hoc arrangements. It is possible only within the
framework of a larger political community, which embodies the constitutional structures
that make law possible (and that are themselves made possible by law), and structures
the form of life within which criminal law can operate.39
Page 11 of 25

This is not yet to say, however, that criminal law requires the kind of democratic polity
that talk of citizens might connote: non-egalitarian political communities have criminal laws.
A conception of criminal law as a law for citizens depends on a democratic political theory,
to argue that a legitimate criminal law requires a political community whose members
share the status of citizen; citizenship being understood roughly as equal, mutually
respectful participation in the civic enterprise.40 The nature of that civic enterprise, and
the character and extent of its claims on citizens lives, is a matter for political deliberation.
At one extreme lie ambitiously demanding kinds of communitarianism that make what
liberals see as oppressively intrusive demands on citizens, and leave too small a private
realm in which individuals can pursue their own conceptions of the good, in the company
of those with whom they choose to associate: religious communities that claim the bodies
and souls of their members are extreme examples of this communitarian vision, or
(p.139) nightmare. At another extreme lies the kind of radical individualist liberalism that
communitarian critics fear, which insists upon an extensive realm of private life, and a
minimal public sphere. We need not engage in this debate here, however. All we need to
note is that however minimal the public sphere of matters that concern all citizens is taken
to be, any polity must have a public sphere, structured by its self-defining values. Those
values include norms about how citizens should treat each other, which gives us the
basis for an idea of public wrongsof wrongdoing that violates the polity's defining
values; and this then gives us a basis for an idea of criminal law as a formal way of
identifying and responding to such wrongs.41
Public wrongs are our wrongs as citizenswrongs in which we take a proper interest, to
which we should collectively respond, for which we claim the right (and perhaps the duty)
to call the perpetrator to answer to us. Some such wrongs are public in their material
impact: if we ask who is wronged the answer is the public; this is true of, for instance,
some wrongs of general endangerment and environmental damage; of wrongs that
threaten public institutions; of frauds committed against the public purse. Others take
individuals as their direct victims, but count as our wrongs because they violate our
public values, and because we share them with the victim: our concern for the victim as
our fellow citizen makes them our business. So does our recognition of the wrongdoer as
a fellow citizen: what is done by one of us, when it impinges on our shared values, is our
business.42 If a wrong is our business, we may, perhaps should, respond to it, and seek
to call its perpetrator to account.
To avoid misunderstanding, I should make clear that the wrongfulness of a public wrong
does not depend on its being public: public wrongs are, in this context, wrongs that
concern us all as citizens. Sometimes, as I noted above, conduct is wrongful because of
its impact on the publicbecause it attacks or threatens a public good, or an institution
that is crucial to our civic life. Sometimes the wrongfulness of a public wrong lies partly in
its civic character: the wrong consists, for instance, in failing to show a fellow citizen the
respect or concern due to her as a fellow citizen. Often, however, what makes the
conduct wrong is independent of its impact on a wider public, and it is wrong because
that is not how one should treat anyone, fellow citizen or not. This is obviously true of
familiar mala in se: what makes murder or rape wrong has to do with what is done to the
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direct victim; nor is it plausible to argue that what makes them criminalizable is some
further feature to do with their effect on the public.43 To say that such wrongs are
public (p.140) wrongs is, rather, to say that they are wrongs that concern all citizens,
in virtue of their civic fellowship with the victim (and the offender). To identify a wrong as
a public wrong in the context of a particular polity's criminal law thus does not imply that it
is not a wrong, or not so serious a wrong, when committed elsewhere or against
someone who is not a citizen of the polity. In saying that a rape committed in England is a
crime in English law for which the rapist must answer in an English court, whilst a rape
committed in Poland is not a wrong in English law or a matter for the English courts,44 we
do not imply that the rape in Poland is not wrong, or less wrong, or wrong on different
grounds. Nor do we imply that it is not a wrong that matters to us as human beings, or as
moral agents: it is, we can say, our moral or human business (though that raises the
question of what we can do about it simply as human beings or moral agents), as a
serious wrong committed against a fellow human being. What is at issue here, however, is
what concerns us as citizens, and what concerns the criminal law of this particular polity;
we cannot see a rape committed in Poland as a wrong committed within our civic
enterprise as a polity or, therefore, as a wrong that concerns our criminal law.
We can put the core point here in the language of associative obligations.45 The criminal
law gives institutional form to a particular subset of what we might call secondary
associative obligations: associative because they are obligations we owe to our fellow
citizens in virtue of our shared membership of the polity; secondary because they
concern our civic responses to breaches of the primary obligations that the criminal law
presupposesto commissions of the kinds of wrong with which the criminal law is
concerned. As citizens, we have a special duty to attend to public wrongs committed
within the polity: a duty to respond to such wrongs by calling the wrongdoer to public
account, which we owe to both victim and wrongdoer; a duty to answer to our fellows for
our own commissions of such wrongs, and to answer to any accusations of such
wrongdoing that are reasonably brought against us.
I cannot develop this account of the relationship between citizenship and the criminal law
here, though much more clearly needs to be said about citizenship, about the civic
enterprise, and about how we can determine which kinds of wrong are to count as public,
criminalizable wrongsthe central issue of criminalization. Instead, I want to consider a
set of objections to giving citizenship so central a role in our understanding of criminal
law: objections that focus on the exclusionary potential of the idea of citizenship.
(p.141) 3 CITIZENS AND NON-CITIZENS

One question about the ideas of citizenship and political community as I have used them
here is whether we can see the societies in which most of us live as genuine political
communities, whose citizens share a commitment to a substantial set of values that define
a civic enterprise in which they see themselves as mutually engaged. All I can say on that
question here is that if we do not live in what can count as political communities, the
legitimacy of criminal law is radically undermined, as is the legitimacy of much else about
the state. However, if we bear in mind that the reality of a political community can be a
Page 13 of 25

matter of aspiration as much as of achieved fact; and that a political community can still be
a relatively thin one, structured by a range of liberal values that leave extensive room for
other kinds of community free from the demands of the polity and its civic enterprise, we
might be less pessimistic. The questions I want to focus on, however, concern the limits of
citizenship.46
Citizenship has both inclusionary and exclusionary dimensions. In a generously minded
polity, citizenship is inclusive: all those born within the polity are citizens; incomers can
gain citizenship relatively easily. Even then citizenship is also exclusionary: absent a
cosmopolitan world order, when there are citizens there are also non-citizens, who are
excluded from such rights and benefits as citizenship brings. Such exclusion is not always
disturbing. It is no cause for concern that state A does not grant the benefits of
citizenship to people living in stable and prosperous states elsewhere; nor that it does not
grant citizenship to those living elsewhere, under more adverse conditions, who do not
seek entry to itthough there is much else that it should do to assist. Nor is it cause for
concern that those who visit A as tourists, or to do business, are not eligible for full
citizenship, though we must ask about their status. But focusing on citizenship raises at
least two worries about the treatment of non-citizens.
One worry concerns those who are not, and do not seek to become, citizens, but who
visit the state for shorter or longer periods. How will a criminal law for citizens treat such
visitors? This worry is not a deep one. Polities can be hostile, disrespectful, uncaring
towards foreign visitors, denying them the protections that citizens enjoy; but that is not
an implication of a focus on citizenship. Many social groups or institutions operate with a
conception of guests or visitors: the group (a family; a village; a group of cohabiting
friends; a university) consists, at its core, in its members; but it welcomes visitors, whom
it treats with respect and concern. They do not play the role that members play in
determining the group's activities (they do not take decision-making roles in political
deliberation or its analogue); but decent groups accord visitors the kinds of support and
protection that their members enjoy. There (p.142) is much more to say about the
status of guest or visitor, and what it can involve; but the crucial point is that in any
decent polity, guests and visitors are protected by its criminal law in the same way as its
citizens.
More precisely, they are protected and bound by the criminal law. As to protection, the
key issue is not whether conduct towards them that the local law defines as criminal when
done to a citizen counts as wrong. There might be some wrongs that can only be
committed against fellow citizens: electoral misconduct, for instance, or failing to pay one's
taxes. Most criminal wrongs, however, are wrongs whether committed by, or against,
citizens or non-citizens: the criminal law, as we saw, presupposes wrongfulness rather
than creating it. The more important point concerns responses to wrongdoing: a decent
polity will count and treat wrongs committed within its borders against visitors as no less
public, no less wrongful, than wrongs committed against citizens. Not only should we not
wrong guests: if a guest in our home is wronged, that is our business; and whilst there
are dangers that citizens will not take wrongs against visitors as seriously as they take
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wrongs against citizens (She was only a tourist), members of a civilized polity will not
discriminate in this way.47
That is true whether the guest is attacked by a citizen or by another visitor, which brings
us to other side of the coin: that guests are both protected and bound. The fact that the
person I attack is a visitor, rather than a citizen, does not exempt me from criminal
prosecution; nor does the fact that I am myself a visitor who attacks another visitor.
There are two versions of this point, relevant to different types of crime. On one version,
visitors are expected to abide by the local rules (When in Rome ), and may be called
to account by their hosts if they do not: whatever kinds of conduct might be permissible
at home (as to which the local law is properly silent), when they are here they should
obey our rules. This version is appropriate in some contexts. The point is not merely that
local conventions often differfor instance, that here we drive on the left: in such cases
the wrong itself, whether committed by a guest or by a citizen, consists in failure to
respect a justified convention. Rather, it is that sometimes we must recognize the fact of
reasonable disagreement (especially given different cultural backgrounds that may alter
the meanings of actions) about values that inform our criminal lawfor instance, about
what counts as offensive conduct, or as dishonesty. In such cases we say to visitors that
they should eschew such conduct while they are here, not (just) because it is wrong, but
out of respect for the local values and attitudes.48 In other cases, however, our claim
should be more (p.143) robust: such conduct is wrong, wherever it is committed,
although it becomes our business as a polity (the business of our criminal law) only when
it is committed in our territory. We should not say to a wife-beater, for instance, that he
ought to refrain from beating his wife whilst he is here out of respect for local laws; we
should say that wife-beating is a wrong that he ought not to commit anywhere, and for
which we will call him to answer if he commits it here. Sometimes we criticize guests for
failing to respect local rules or sensibilities; sometimes we criticize them for committing
wrongs in our home, when the significance of the location is not that it makes wrongful
what might not have been wrong elsewhere, but that it makes our business a wrong that
would not have been our business had it been committed elsewhere.
An account that emphasizes citizenship faces deeper worries in other kinds of case, which
we can approach via Jakobs notorious distinction between Brgerstrafrecht (citizen
criminal law) and Feindstrafrecht (enemy criminal law).49 Brgerstrafrecht is for citizens.
It respects the presumption of innocence, not only as a principle governing the allocation
of burdens of proof in the trial, but as a broader principle of trust: we should presume
each other to be free of harmful intentions,50 and trust each other to refrain from
future crimes. It treats offenders as members of the polity, whose trials and punishments
must respect that status. By contrast, Feindstrafrecht abandons criminal law as I have
characterized it: it treats those on whom it is imposed not as citizens, but as actual or
potential enemies; it seeks to control them for the sake of security, rather than to
address them as members of the normative community.
Such a distinction is certainly drawn in contemporary penal theory, rhetoric, and practice.
In penal theory, some argue that those who commit crimes lose their standing as citizens,
Page 15 of 25

so that we can treat them in ways in which we could not treat citizens, and deny them the
respect and concern that we owe to citizens; 51 such a view finds formal legal expression
in the loss of the right to vote (a central aspect of citizenship) suffered during their
incarceration by those serving prison terms in Britain,52 and for life by convicted felons in
some American states.53 In penal rhetoric, we are all too familiar with talk of a war on
drugs, or crime, or terrorism, which portrays the (p.144) disfavoured group of (actual
or potential) offenders as outsidersa them against whom the law-abiding we must be
protected. In penal practice the distinction is seen in, for instance, the provisions for
imprisonment for public protection in England,54 and the three strikes provisions in the
United States; 55 in provisions for those suspected of being involved in terrorist activities,
in particular provisions for detention, or other kinds of restriction, without a conviction; 56
and in a wide range of other restrictive measures that are more concerned with
preventing future crime than with responding appropriately to past crimes.57 So is it a
sound objection to a citizenship-based account of criminal law that it allows, or even
encourages, such discrimination between citizens and enemies?
The answer is a firm but qualified No. The answer is firm, because the criminal law can
and should be a criminal law for all citizensincluding actual and suspected offenders: as
I argued in section 2, the criminal law must address us all, including the many of us who
are actual or potential offenders, as members of the normative community whose law it is.
It must take our public wrongdoing seriously, holding us to account for it, and thus also
aiming to repair our civic relationships with our fellow citizens: but it holds us to account
precisely as citizens whose full membership of the polity is not in doubtwhich is why the
right to vote in prison is symbolically important. Such a conception of those who commit
crimes is challenging: it is tempting for self-defined law-abiding citizens to regard
offenders as less than (full) citizens. But that is to say only, and unsurprisingly, that
political community is challenging. Nor is the communitarian approach that I have taken
peculiarly vulnerable here: the aspiration to secure respect for the rights (human, moral,
political, legal) of offenders, or to treat them still as full parties to the social contract, is no
less challenging. The problem of exclusion, whether from citizenship, from the realm of
rights, or from the social contract, need not be a problem for normative theory; it is a
moral problem for our attitudes and practices.58 (p.145)
The firm No offered in the previous paragraph must also, however, be qualified, since
two kinds of case put it under pressure: but such cases must be problematic for any
normative theory of criminal law, and therefore do not cast doubt on the account offered
here.
The first kind of case concerns those who engage persistently in crimes of a character
and seriousness that deny the basic values on which the civic enterprise depends (or,
others might say, deny the most basic terms of the social contract); crimes so persistent
that they constitute a criminal career, rather than a series of individual wrongs. Should
we insist that such people must still be recognized and treated as full members of the
normative communitythat such membership is wholly unconditional? Or does there
come a point at which we may, or must, say that whilst we still owe them the respect and
Page 16 of 25

concern due to any human being, the chance to restore themselves to full citizenship by
showing that they can again be trusted, and help in achieving this, we cannot now treat
them as full members? But we cannot tackle the question in such abstract terms: we
must ask what is at stake in retaining or losing full citizenship in this contextand bear in
mind that what is at stake need not be citizenship as a unitary or seamless status, but
more particular aspects of membership of the polity.
Some of those aspects, we should surely say, are not alienable or conditional, for
instance, the rights to such benefits of citizenship as education, health care, and social
security. Others might be argued overfor instance, the right to vote or otherwise
participate in the political process: just because the right to vote is so important a symbol
of citizenship, should we say to the serious career criminal Given your persistent and
flagrant violation of the bonds of the polity, you can now claim no right to help determine
the direction of its civic life; or should we insist that we must still give this symbolic
expression to the hope that he will rehabilitate himself? The most obviously problematic
aspects, however, concern the kinds of liberty and privacy that citizens normally have a
right to expect, and the associated right to be restored to full liberty, and to be free from
intrusive supervision, once one has served an appropriate and determinate punishment
for one's crimes. An essential feature of a liberal penal system is that punishment is finite
and limited: what the offender is to undergo is determined in advance by a sentencing
process structured by the question of what constitutes an appropriate response to his
crime. His sentence might involve restrictions on his liberty, including imprisonment, and
forms of supervision that would normally be illegitimate; 59 but once it is over, he is free
from those restrictions and from such supervision, without having to prove that he will
refrain from future (p.146) crimes; having served his sentence, he is once again
entitled to the broad presumption of innocence.60 Provisions for dangerous persistent
offenders that allow for their indefinite or life-long detention abandon this aspect of liberal
criminal law,61 and imply that a persistent offender can lose his right to that presumption
not just for a limited time, but indefinitely or for life. Those provisions are certainly far
too broad: they deprive far too many offenders of their civic standing. But should we
recognize that there may be what we must hope is a very small class of determined,
persistent, and dangerous offenders whose criminal careers do disqualify them from that
presumption: offenders whom, given their history of unrepentantly flagrant criminality,
we can no longer be expected to trust as fellow citizens?
Were we to go down this route, much more work would of course need to be done on
the conditions given which, and the procedures through which, such exceptional
measures could be imposed; on the form that such measures could properly take; on the
procedures through which they could be lifted. That last point is crucial: even if a
sufficiently persistent career of sufficiently serious criminality could justify us in turning
the presumption of innocence into a presumption of criminality, that presumption would
have to be rebuttable; we might place on the offender the onus of offering sufficient
evidence that he has changed his ways, but it must be an onus that he could discharge.
We might then find that we cannot specify procedures for such measures that would be
adequately safe and reliable, but the question here is whether we should even consider
Page 17 of 25

them in principle. I remain uncertain about how to answer that question: about whether
the civic presumption that those who have undergone their punishment can be trusted,
as any citizen is trusted, to refrain from future crime (a presumption that is central to a
liberal republican criminal law) should be irrebuttable:62 but it is one that faces any penal
theory, and any polity that takes citizenship seriously.
The second kind of problem case concerns those involved in terrorist activitiesor, more
precisely, given the difficulty of defining terrorism, those involved in violence that aims
to destabilize the polity.63 Might we have to say that such terrorists deny their
membership of the polity that they attack: whether or not they are, formally, citizens of
that community, they make themselves in substance enemies engaged in a war against it?
This would not exclude them from the polity on the basis of our own view of their
activities: it would accept at face the value the denial of membership that their actions
express; they act and should be seen as enemy soldiers engaged in covert military
operations. If we are fighting a war, the criminal law withdraws somewhat: we do not
charge enemy soldiers who kill in action with (p.147) murder in a criminal court. We try
to thwart them, if necessary using fatal military force against them; if we capture them,
we detain them as prisoners of war, while the war lasts. But such detention is not
punishment: it does not depend on criminal conviction, or express condemnation, or aim
to bring the detainee to recognize his wrongdoing; it is a preventive measure justified by
the detainee's status as an enemy soldier.64
Enemy soldiers are not outside the law. They are both protected and bound by the laws
of war: our conduct towards them, as soldiers or as prisoners of war, is governed by the
laws of war; their conduct is subject to the demands of those laws, both ad bellum and in
bello; they can be charged with war crimes if they violate them. This creates an obvious
problem for this perspective on terrorist activities: they do not fit into the orthodox
framework of the laws of warfare. There is no formal declaration of war between states;
fighters do not wear uniforms that mark them as combatants (and activate the protections
that combatants can claim); and if they attack civilian targets, they violate the rules of jus
in bello. Furthermore, whatever can be said about terrorists who attack from outside
the polity, those who attack from within, at least if they are formally citizens, cannot be so
readily portrayed as enemy soldiers: they look more like traitors, who under the laws of
war are not entitled to be treated as enemy soldiers. However, it could be argued that
the phenomena of modern terrorism require us to rethink our existing categories:
neither the framework of normal criminal law, nor that of warfare as classically
conceived, can accommodate modern terrorism; we must either articulate a new
normative category, or develop our existing categories.65
If we should see those engaged in terrorism within the normative framework of warfare
rather than of criminal law, we should not expect a liberal criminal law to deal with them.
But there are two reasons for not going down this route. One is that insofar as terrorism
involves attacks on civilian targets that must count as innocent, those who commit such
attacks should have to answer for them as wrongs, and such answering is properly done
in a criminal court (although there is a case for looking to international rather than
Page 18 of 25

domestic criminal courts to try serious terrorist cases). The other reason is that, absent
proof of terrorist activity of a kind that could ground a criminal conviction, our question
must concern the measures that we may use not against terrorists, but against
suspected terrorists. Enemy soldiers in classical warfare wear their status visibly as a
uniform: although under the conditions of modern (p.148) warfare it is often difficult to
distinguish combatants from non-combatants,66 we know how to recognize an enemy
soldier. In terrorism-related cases that come before our courts, however, in which
special preventive measures might be imposed,67 those who are liable to these modes of
legal coercion appear not as proven terrorists, but as people suspected of involvement in
terrorism who might be innocent citizens. They are therefore entitled to the presumption
of innocence, and to a proper criminal process; any question of special, preventive
measures can arise only after they have been duly convicted of an offence that can
properly be said to amount to a determined attack on the polity itself. This is not to deny
that criminal law can come under pressure in times of emergency, or that measures
which subvert or bypass the requirements of liberal criminal law might then be qualifiedly
justified. I cannot discuss this possibility now; 68 the point to note here is that it does not
reveal a weakness in a citizenship-based account of criminal law, since it is not that
account of law that invites or encourages us to exclude some people from the law's
protection.
4 CONCLUSION
I have argued that we can best understand the authority and claims of criminal law in a
liberal polity by understanding it as a law for citizens: a law to which citizens subject each
other and themselves, under which they call public wrongdoers to account for what they
have done, and are themselves ready to answer to their fellows. I have also argued that
such an account need not have the kinds of exclusionary effect that worry some critics
but that it does highlight two problematic kinds of case in which it is not clear that a
citizens criminal law remains viable.
Notes:
(1) See J Braithwaite and P Pettit, Not Just Deserts: A Republican Theory of Criminal
Justice (Oxford: Oxford University Press, 1990).
(2) See MS Moore, Placing Blame (Oxford: Oxford University Press, 1997), ch 1.
(3) See the comments on complexity and messiness in the Introduction, at nn 1727.
(4) For more detailed discussion, see my Answering for Crime (Oxford: Hart Publishing,
2007), chs 4, 6.
(5) Note first, however, that the criminal law may provide distinctive definitions of the
public wrongs that it identifies, especially when the pre-criminal understanding of those
wrongs is conflicted or uncertain. Second, my claim is not that only morally wrongful
conduct is actually criminalized, but that to criminalize conduct must be to portray it as
morally wrong (see V Tadros and S Tierney, The Presumption of Innocence and the
Human Rights Act (2004) 67 Modern Law Review 402).
Page 19 of 25

(6) See SE Marshall and RA Duff, Criminalization and Sharing Wrongs (1998) 11
Canadian Journal of Law and Jurisprudence 7; also MM Dempsey, Prosecuting Domestic
Violence: A Philosophical Analysis (Oxford: Oxford University Press, 2009), especially
chs 89.
(7) See P Duff, The Prosecutor Fine (1994) 14 Oxford Journal of Legal Studies 565.
(8) See D Husak, Malum Prohibitum and Retributivism, in RA Duff and SP Green (eds),
Defining Crimes (Oxford: Oxford University Press, 2005), 65; Overcriminalization: The
Limits of the Criminal Law (Oxford: Oxford University Press, 2007), 10319. The
distinction between mala in se and mala prohibita is of course neither clear nor
undisputed: see eg RL Gray, Eliminating the (Absurd) Distinction between Malum in Se
and Malum Prohibitum Crimes (1995) 73 Washington University Law Quarterly 1369.
(9) I leave aside the complicating, but not now crucial, point that our understanding of
some mala in se may be structured by the law, as our understanding of theft is
structured by the law of property; see AM Honor, The Dependence of Morality on
Law (1993) 13 Oxford Journal of Legal Studies 1.
(10) See further Duff, Answering for Crime, chs 4.4, 7.3. The conduct constituting a
malum prohibitum is thus not necessarily wrongful prior to its legal regulation, but must
be wrongful prior to its criminalization.
(11) See further RA Duff, L Farmer, SE Marshall, and V Tadros, The Trial on Trial III:
Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007).
(12) Punitive damages, which precisely focus on fault and wrongdoing, are inconsistent
with this account, but are arguably inconsistent with the proper purposes of civil law.
(13) Though what he owes, what (if anything) could count as reparation for wrongdoing,
is another question that we cannot pursue here.
(14) Which is why it matters that the defendant in a criminal trial is fit to pleadable to
understand and answer to the charge.
(15) There is much more to be said about the sense in which the reasons that we take A
to have must be within his reach: for useful surveys see J Lenman, Reasons for Action:
Justification vs. Explanation, Stanford Encyclopedia of Philosophy (Spring 2010), at
http://plato.stanford.edu/archives/spr2010/entries/reasons-just-vs-expl/; S Finlay and M
Schroeder, Reasons for Action: Internal vs. External, Stanford Encyclopedia of
Philosophy (Fall 2008), at http://plato.stanford.edu/archives/fall2008/entries/reasonsinternal-external/.
(16) Matters might be different if your reason for challenging me had to do not with my
health but (eg) with the immorality of eating meat; I turn to this kind of case shortly.
(17) Compare TM Scanlon, Moral Dimensions: Permissibility, Meaning, Blame
Page 20 of 25

(Cambridge, Mass: Harvard University Press, 2008), 13940: the moral relationship
that grounds the legitimacy of moral blame is a matter of the mutual concern that, ideally,
we all have toward other rational beings.
(18) Moore, Placing Blame, 335.
(19) I have moral reason to intervene, even if I have no legal duty to do so.
(20) As the Wolfenden Committee famously put it, in relation to consensual homosexual
activity between adults: J Wolfenden, Report of the Committee on Homosexual Offences
and Prostitution (London: HMSO, 1957), para 61. Even those who believe, misguidedly,
that such conduct is morally wrong should also agree that this is not a moral issue on
which the criminal law should take a viewthat it is in that sense private.
(21) Compare Moore, Placing Blame, ch 16; A Tale of Two Theories (2009) 28 Criminal
Justice Ethics 27, 313.
(22) On whether he could be tried in France or in Poland, and on the universal
jurisdiction that some systems of domestic criminal law claim over some crimes, see at
nn 29, 31 below.
(23) Compare the account of international law offered in A Altman and CH Wellman, A
Liberal Theory of International Justice (Oxford: Oxford University Press, 2009), esp ch
4; and see Wellman in this volume.
(24) See M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford
University Press, 2003), ch 1; also eg German Criminal Code, s 3.
(25) Some would say firmly that we do, because mere distance (whether physical or
psychological) cannot be a relevant modifier of the basic demands of moralitya position
associated particularly with Peter Singer.
(26) L Blum, Friendship, Altruism and Morality (London: Routledge, 1980); J Cottingham,
Partiality and the Virtues, in R Crisp (ed), How Should One Live? (Oxford: Oxford
University Press, 1996), 57.
(27) There are of course other reasons bearing on these examples: eg arguments against
trying Saddam Hussein in Iraq that have to do with his chances of a fair trial; reasons for
mistrusting the ICC having to do with its perceived political character. The Eichmann case
is also worth considering in this context: should he ideally have been tried in Israel, or in
Germany, or by an international court?
(28) Rome Statute of the International Criminal Court, Preamble.
(29) Eg Criminal Justice Act 1988, s 134: torture committed or sanctioned by public
officials is a crime triable in English courts, wherever and against whomever it is
committed; applied in R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet
Page 21 of 25

Ugarte [2000] 1 AC 147.
(30) Such a theorist might also find support in the ICCs principle of complementarity
that it can try only cases that have not been properly investigated by a state with
jurisdiction (Rome Statute, art 17).
(31) See eg French Code Pnal, art 113.67; German Strafgesetzbuch, s 7.12, Sex
Offenders Act 1997, s 7. See generally Hirst, Jurisdiction and the Ambit of the Criminal
Law, ch 5.
(32) See A Chehtman, The Extraterritorial Scope of the Right to Punish (2010) 29 Law
and Philosophy 127 (he argues against universal jurisdiction, and against the principles of
nationality and passive personality).
(33) Only for many such wrongs because some criminal wrongs, notably those that
threaten the longer term operations of the state, can plausibly be said to affect only
members.
(34) As Chehtman realizes in The Extraterritorial Scope of the Right to Punish, eg at 134.
(35) Compare Scanlon, Moral Dimensions; on the difference between talk of rational
agents and talk of human beings, see R Gaita, Good and Evil: An Absolute Conception (2nd
edn; London: Routledge, 2004), ch 3.
(36) See eg S Caney, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford
University Press, 2005); D Held, Cosmopolitanism: A Defence (Cambridge: Polity Press,
2003).
(37) See at n 28 above; RA Duff, Authority and Responsibility in International Criminal
Law, in S Besson and J Tasioulas (eds), Philosophy of International Law (Oxford: Oxford
University Press, 2010).
(38) See Duff, Answering for Crime, ch 2.2.
(39) On the importance of setting criminal law in its constitutional context, see Thorburn in
this volume.
(40) Such a theory is best articulated in republicanism: see eg R Dagger, Civic Virtues:
Rights, Citizenship and Republican Liberalism (Oxford: Oxford University Press, 1997),
and in this volume; also RM Dworkin, A Matter of Principle (Cambridge, MA: Harvard
University Press, 1985), ch 8, on the equal concern and respect that citizens owe each
other.
(41) But only a basis: see further RA Duff, Responsibility, Restoration and Retribution,
in M Tonry (ed), Retributivism Has a Past: Has it a Future? (Oxford: Oxford University
Press, forthcoming).
Page 22 of 25

(42) That is what grounds the principles of nationality and passive personality (see at n 31
above).
(43) See further Marshall and Duff, Criminalization and Sharing Wrongs; Duff, Answering
for Crime, ch 6.5. Contrast J Gardner and S Shute, The Wrongness of Rape, in J Horder
(ed), Oxford Essays in Jurisprudence, 4th Series (Oxford: Oxford University Press,
2000), 193, arguing that although the moral wrongness of rape does not lie in its harmful
effects, our reasons for criminalizing it do depend on the wider effects of failing to
criminalize it; for an incisive critique, see J Stanton-Ife, Horrific Crime, in RA Duff, L
Farmer, SE Marshall, M Renzo, and V Tadros (eds), The Boundaries of the Criminal Law
(Oxford: Oxford University Press, 2010).
(44) Unless we accept a principle of nationality or of passive personality (see at n 31
above), and count it as our business if it is committed by or against an English citizen: but
the view offered here, while it shows how we can make sense of those principles, does
not commit us to adopting them.
(45) See RM Dworkin, Laws Empire (London: Fontana, 1986), ch 6; J Horton In Defense
of Associative Political Obligations (2006) 54 Political Studies 427 and (2007) 55 Political
Studies 19.
(46) I am especially grateful to Lucia Zedner for forcing me to think more seriously about
these issues.
(47) Suppose the guest is uninvitedan illegal immigrant? One question that I cannot
pursue here concerns the conditions under which a polity should admit would-be
entrants either to residence or to citizenship (how open its doors should be); but for so
long as they are in the polity they must be treated with respect.
(48) Another question that I cannot pursue here is whether we should sometimes say
something analogous to a citizen who reasonably dissents from the values expressed in
the law: should we (eg) say to one who believes that certain kinds of euthanasia should be
legally permissible, not that she ought to accept the laws declaration that they are wrong,
but that though her view is reasonable, she should respect the public view as expressed
in the law? (In both cases we must of course ask whether we could so revise the law that
reasonable dissenters could act as they think right without facing criminal liability.)
(49) See eg G Jakobs: Brgerstrafrecht und Feindstrafrecht (2004) HRRS 88 at
http://www.hrr-strafrecht.de/hrr/archiv/04-03/hrrs-3-04.pdf. For critical discussion, see
C G-J Dez, Enemy Combatants Versus Enemy Criminal Law (2008) 11 New Criminal
Law Review 529; also L Zedner, Security, the State, and the Citizen: the Changing
Architecture of Crime Control (2010) 13 New Criminal Law Review 379.
(50) See J Floud and W Young, Dangerousness and Criminal Justice (London:
Heinemann, 1981), 44.
(51) Eg AI Goldman, Toward a New Theory of Punishment (1982) 1 Law and Philosophy
Page 23 of 25

57; CW Morris, Punishment and Loss of Moral Standing (1991) 21 Canadian Journal of
Philosophy 53.
(52) Despite the (very qualified) ECtHR ruling in Hirst v UK (2006) 42 EHRR 41.
(53) See L Wacquant, Deadly Symbiosis (2001) 3 Punishment & Society 95.
(54) See Criminal Justice Act 2003, ss 22436; Criminal Justice and Immigration Act 208,
ss 1320; P Ramsay, A Political Theory of Imprisonment for Public Protection, in Tonry
(ed), Retributivism Has a Past.
(55) See eg California Penal Code, 667, 1170.12; F Zimring, G Hawkins, and S Kamin,
Punishment and Democracy: Three Strikes and Youre Out in California (Oxford: Oxford
University Press, 2001).
(56) L Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal Justice
(2005) 32 Journal of Law and Society 507; V Tadros, Justice and Terrorism (2007) 10
New Criminal Law Review 658.
(57) See generally Ashworth and Zedner in this volume, and Defending the Criminal Law:
Reflections on the Changing Character of Crime, Procedure, and Sanctions (2008) 2
Criminal Law and Philosophy 21.
(58) For an argument to similar conclusions from contractualist premises, see C
Brettschneider, The Rights of the Guilty: Punishment and Political Legitimacy (2007) 35
Political Theory 175; see also RA Duff, A Criminal Law for Citizens (2010) 14
Theoretical Criminology 293. A citizenship-based approach can also explain why we
should worry about punishing those who have suffered seriously unjust disadvantages
(see Green in this volume): our collective failure to treat them as fellow citizens
undermines our standing to call them to account (see V Tadros, Poverty and Criminal
Responsibility (2009) 43 Journal of Value Inquiry 391; RA Duff, Blame, Moral Standing
and the Legitimacy of the Criminal Trial (2010) 23 Ratio 1).
(59) On the role of different modes of punishment in a penal system that takes citizenship
seriously, see RA Duff, Punishment, Communication and Community (New York: Oxford
University Press, 2001), ch 4.2.
(60) See at n 50 above.
(61) See at nn 545 above.
(62) See Duff, Punishment, Communication and Community, ch 4.4.
(63) Compare S Scheffler, Is Terrorism Morally Distinctive? (2006) 14 Journal of
Political Philosophy 1, 5.
(64) On the issues raised by such detention, see A Walen, A Unified Theory of Detention,
Page 24 of 25

with Application to Preventive Detention for Suspected Terrorists, forthcoming in (2011)
70 Maryland Law Review.
(65) See P Gilbert, New Terror, New Wars (Edinburgh: Edinburgh University Press,
2003). Others might argue that the terrorist is neither criminal nor soldier, but an outlaw,
hostis humani generis (see Blackstone, Commentaries on the Laws of England (Oxford:
Clarendon Press, 17659), iv.5); against this view, we should insist that terrorists are
fellow human beings who must be protected as well as bound by law.
(66) Which is why there are serious grounds to doubt whether many kinds of warfare
can be compatible with the classical jus in bello protections for non-combatants.
(67) See at n 56 above. The key point here is that the procedures through which such
measures are imposed do not involve proof of involvement in terrorism of a kind that a
criminal conviction would require.
(68) See Zedner, Securing Liberty in the face of Terror: Reflections from Criminal
Justice; Tadros, Justice and Terrorism; J Waldron, Security and Liberty: The Image of
Balance (2003) 11 Journal of Political Philosophy 191; F Tanguay-Renaud, Individual
Emergencies and the Rule of Criminal Law CLPE Research Paper No. 37/2008,
http://ssrn.com/abstract=1292805.
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