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A surprisingly large number of questions arise under the heading the philosophy of
punishment. Here, in what roughly conforms to the intellectual order in which
these questions might be addressed, although not necessarily the order of their
importance, are some of them:
What is punishment? Is it punishment to put someone in prison if they prefer
this to life outside? Is it punishment to put someone to death if they want to
die? From whose point of view should this question be decided?1
Whom may we punish? Can we properly punish animals, as they did, for
example, in medieval France? What about the mentally incompetent, or
children?2
What is the relationship between punishment and responsibility, in both the
causal and the moral sense? Which sense matters for purposes of the criminal
law? Can there be criminal responsibility without fault?3
Can the imposition of punishment be morally justied? Can it be morally
required? Does the justication for the institution of punishment differ from
the justication for a particular act of punishment, as some theorists contend?
Does the justication for the threat of punishment differ from the justication
for its actual imposition, as others contend?4
In what way should punishment t the crime? How do we determine what kind
and amount of punishment is due? What is the role of forgiveness and mercy?5
1
See, e.g., Duff 1986: 1513; Reiff 2005: 7798, 11641.
2
See, e.g., Duff 1986, 2007a: 1978; Hart 2008; Evans 1906.
3
See, e.g., Duff 1990, 2005a, 2007a, 2008; Hart and Honor 1985; Hart 2008; Moore 2009.
4
The number of theorists who have written on this issue is enormous, but in addition to Duff 1986
and 2001, key contemporary works include Acton 1969; Cottingham 1979; Feinberg 1970; Lacey
1988; Simmons et al. 1995; von Hirsch 1993; Walker 1991, 1999; Rawls 1955; and Kavka 1987.
5
See, e.g., Duff 2005b, 2007b; Davis 1986; Reiff 2005.
Antony Duff and the Philosophy of Punishment. Mark R. Reiff and Rowan Cruft.
Oxford University Press 2011. Published 2011 by Oxford University Press.
4 Introduction
Are attempts to be punished as severely as completed crimes? Less severely?
Not at all? What kind of act might constitute an attempt?6
What kind of conduct should be punishable under the criminal law, and what
considerations should be taken into account here? The agents intent?
The harm caused? The degree to which the harm caused can be compensated,
if at all?7
What defences should be available to those who have committed such acts?
What is the difference between a justication and an excuse?8
Are there any moral limits on the kind and extent of punishment that may be
imposed, regardless of the seriousness of the crime? Can we, as an act of
punishment, take a life? Can we engage in torture, or in cruel and degrading
treatment?9
Who decides whether an accused person is guilty and should be punished, and
by what process are these decisions to be made? Is there something special
about what we typically call a criminal trial, or are there other ways of
determining contested matters that would be equally satisfactory? What
restrictions might apply to whatever decision-making process we employ?10
What is the role of punishment in international law? Are the issues different
here, or only the extent of the crimes? Are nations to be punished just like
individuals, or is it wrong to impose hardships on people for the actions of
their leaders?11
What is the role of punishment in transitional justice? Are actual prosecutions
necessary, or are truth and reconciliation commissions sufcient? Is it some-
times morally permissible for a community undergoing a political transition to
leave past crimes unanswered and simply look forward into the future?12
Of course, many of these questions are intertwined in various ways, some could be
derived from and therefore subsumed by others, and we have unavoidably had to
leave some questions out. The answers to some of these questions, especially the
question of justication, may also heavily inuence if not determine the answer to
many of the others. But spelling these questions out is important, for it enables us
to see that what are often treated as questions arising under the broader and blander
category of the philosophy of the criminal law really have a unifying feature that is
not so often recognizedthey are all driven by a concern for the appropriateness
of punishment.
6
See, e.g., Duff 1996.
7
See, e.g., Duff 1993, 1998, 2002a, 2002b, 2007a: 79174; Husak 2008; Hart 1963; Feinberg
1984; Reiff 2005.
8
See, e.g., Duff 2004, 2007a: 195228, 26398, 2010b.
9
See, e.g., Duff 2001: 1525, 2005c; Kramer 2011; Shue 1978; Sussman 2005.
10
See, e.g., Duff et al. 2004, 2006, 2007.
11
See, e.g., Duff 2010a; May 2005, 2007, 2008.
12
See, e.g., Duff et al. 2007: 294300; Elster 2004; Pedain 2008.
Introduction 5
We will begin, however, with some brief biographical comments, for we want to
highlight some of the people and historical currents that inuenced Duff s attitudes
and his work. Duff was born in Hampshire (England) in 1945 and went to Oxford
to read Greats, which combines classical language, history, and philosophy with
modern philosophy, in 1963. His rst attraction to philosophy, however, was not
to the philosophy of law, but to the philosophy of action, especially as set forth in
the works of Aristotle. Only toward the end of his time in Oxford, when he
attended seminars given by H. L. A. Hart and the rst lectures by Harts successor,
Ronald Dworkin, did he begin to be drawn to the philosophy of law. And within
the philosophy of law he was particularly attracted to the philosophy of criminal
law, for there seemed to be some interesting and perhaps even practical philosophi-
cal work to be done there. His reaction to some of the high-prole law cases of the
time was that even when the judgments issued were correct, the reasoning behind
them was often poorly expressed, at least in philosophical terms. It would be useful
if some of the answers to the problems that these cases tried to address could be
reconstructed using the more rened and rigorous language and distinctions
available to the analytic philosopher.
Duff s rst academic appointment came in 1968, when he travelled to Seattle in
the United States to spend a year as a visiting lecturer and tutor in philosophy at the
6 Introduction
University of Washington. This was a tumultuous time throughout the world, of
course, and this was especially true in the United States. The war in Vietnam, the
civil rights movement, and the social, political, and cultural unrest these events
provoked, together with the ever-expanding set of rights being granted to criminal
defendants by the Warren Court, all raised deep and important philosophical and
political questions about the proper role and implementation of the criminal law.
For those in the middle of such events, it was practically impossible not to become
acutely aware of the social and political ramications of such questions no matter
what ones interests and inclinations. Coming from Oxford, Duff had already been
immersed in the views of classical liberalism, and he therefore already had a point of
view from which to interpret these events. But his time at the University of
Washington gave his classical liberalism a vivid contemporary context and ulti-
mately cemented his desire to work in an area of philosophy where there were
interesting and important social and political issues to be addressed.
After nishing his year in Seattle, Duff returned to Oxford to begin work on his
DPhil. In just one year, however, he had already obtained a permanent academic
appointment. This, of course, was at the University of Stirling, where together with
his long-time partner, the legal and political philosopher Sandra Marshall, Duff
would spend his entire career (although he now also spends part of each year at the
University of Minnesota), his reputation rising with that of the University. Upon
arriving at Stirling, Duff worked initially on aspects of the philosophy of action, the
interest that had taken him into philosophy in the rst place. Soon, however, he
turned to the issues in the philosophy of punishment for which he is now most
well-known and on which he has concentrated ever since.
3. Justication
13 14
Duff 2001: xi. Duff and Garland 1994: 2.
Introduction 7
15
Those looking for a comprehensive discussion of the various justications on offer should see
Duff and Garland 1994, Duff 1986, and Duff 2001. Other helpful and important summaries include
Cottingham 1979; Walker 1991, 1999; Honderich 2006; and Davis 2009.
16
Duff and Garland 1994: 24.
17
Duff and Garland 1994: 6.
18
See, e.g., Feinberg 1965; Skillen 1980; Primoratz 1989; von Hirsch 1993; and Metz 2000.
19
See Hampton 1984.
20
Duff 2001: xix.
8 Introduction
A normative account of punishment must include a conception of crime as that which is to
be punished. Such a conception of crime presupposes a conception of the criminal lawof
its proper aims and content, of its claims on the citizen. Such a conception of the criminal
law presupposes a conception of the stateits proper role and functions, of its relation to its
citizens. Such a conception of the state must include a conception of society and of the
relation between state and society.21
Among the many such conceptions of these relations, Duff draws on two. One is
liberalism, the tradition that many other criminal law theorists also embrace. The
other is communitarianism, a form of quasi-perfectionism that can arise on either
the left or the right. Duff s particular communitarian attitudes, however, draw
more heavily on the left or liberal end of the perfectionist spectrum, for while
Duff ascribes a non-derivative moral identity and importance to communityan
importance that traditional liberals assign only to communities derivatively, as
collections of individualshe does not give the community moral priority over
the individual, as communitarians on the right (and some consequentialists) often
do.22 Duff also embraces and assigns the highest priority to many other values of
traditional liberalism, values that many communitarians on the right either do not
take so seriously or actually reject outright. Indeed, Duff maintains:
A liberal political community [is] structured by the dening values of autonomy, freedom,
privacy and pluralism; the role of the criminal law in such a polity [is to dene or create] a
range of public wrongs that concern the whole community; and the role of the criminal
trial [is to be] a process through which members of the community are called to answer for
their alleged commissions of such wrongs.23
As a liberal communitarian, then, Duff does not view punishment as simply
something the community doles out on behalf of the victims of criminal behaviour,
whoever these may be. On the contrary, the community is not merely a moral agent
for the victim, but an independent moral participant in the communicative
dialogue that punishment involves, along with the offender and the victim.24
Neither the offender nor the victim has a right to veto condemnation of the
crimethey merely have a moral right (and to some extent, a duty) to make
their views known and to participate in various ways in the process of determining
what actually happened, why it happened, the nature of any injury caused, and how
the community should respond. The communitys voice accordingly has a moral
weight these other voices lack. But all three voices are important parts of the
communicative process, and all have a distinct role to play in the tripartite moral
dialogue that under Duff s vision trial and punishment should entail.
A nal point to note if we are to understand fully Duff s views on punishment is
that Duff is very concerned about the relationship between the ideal and the actual,
between theory and practice.25 His communicative theory is ideal in the sense that
21
Duff 2001: 35.
22
For a discussion of these varying attitudes toward the community, see Reiff 2007.
23
Duff 2001: 75.
24
See Duff and Marshall 2004.
25
See, e.g., Duff 1986: 26799; Duff 2001: 1759.
Introduction 9
26
Duff 2009: 251.
27
See Murphy 2004 and Murphy and Hampton 1998.
28
Duff 2007b.
10 Introduction
can justify the use of hard treatment rather than moral condemnation as an
expression of censure in most cases when there are some cases, and perhaps even
many, in which hard treatment will not be necessary to fully communicate to an
offender the nature and wrongfulness of his offence and encourage him to apologize
and repent.
4. Responsibility
29
Duff 2007a: 1516.
Introduction 11
over me is normally the same [and grounded in the same way] whether I am a citizen,
a resident, a tourist, an ofcial guest, a secret migrant.30
Alon Harels essay can be read as defending Duff against this charge. Harel
argues that Duff s conception of responsibility is justied by how it ensures that
appropriately circumscribed groups (citizens, friends, universities, and so on) are
self-governing. For Harel, a persons answerability to other group members, and
not to outsiders, is necessary if the group is to be fully self-governing. Applied to
Duff s conception of criminal responsibility, the result is republican or semi-
republican criminal law theory under which citizens are called upon to govern
themselves.31
Whether one accepts Gardners criticisms or Harels defence, however, Duff s
account of responsibility has powerful implications: it entails that criminal respon-
sibility is not simply answerability to the victim, but to the community at large. And
because Duff s account of responsibility (like his account of justication) empha-
sizes the need for a tripartite moral dialogue, it implies something about the kinds
of people (infants, the inrm, and so on) that can be held criminally responsible
(that is, answerable to their community) and what kinds of incapacities (such as
severe mental health difculties) might affect their responsibility. It also prompts
questions about the nature of the responsibilities owed to the international com-
munity, and about the nature of the responsibilities that people owe to commu-
nities they visit but of which they are not members.
The question about what responsibilities we might owe to the entire world is the
one that Raimond Gaita seeks to address in his contribution to this volume. Gaita
examines the nature of genocide, and explores how the implications of such a crime
can and should be seen by those attempting to come to grips with it. Gaita argues
that genocide is not merely a crime against the particular group that is its target, but
rather a crime against the entire world. The community to whom one is called to
answer for such a crime is therefore the community of humanity. What he
demonstrates is how Duff s account of criminal responsibility can help us under-
stand why genocide is sometimes called the crime of crimes, and why the moral
responsibilities and duties of every member of humanity are involved whenever and
wherever such a crime may be committed.
Douglas Husaks essay moves from asking who should be called to account to
their fellow citizensand when they should be called to accountto asking what
they might say if required to. He takes his cue from Duff s suggestion that in
addition to excuses and justications, warrants (or putative justications) can
qualify as exculpatory answers when called by ones community to account. Husak
goes on to consider further exculpatory defences, such as that the defendants
conduct was admittedly wrongful but not wrongful enough, which defy clear
classication as either justication or excuse. He concludes that the liability-
averting answers of an agent who is responsibleand who thus, according to Duff,
30 31
Gardner, this volume, 95. Harel, this volume, 117.
12 Introduction
is answerable to her fellow citizensneed not be conned to these two categories.
Criminal liability is more complex.
5. Attempts
It is perhaps no surprise that most of the reaction to Duff s work on attempts
focuses on the importance he accords to both an actions outcomes and an agents
intentions, for many theorists today focus on intentions exclusively. For Duff,
however, outcomes are also centrally relevant to the degree of an agents liability,
even where these are dependent in part on luck and therefore not strictly within the
agents control. For example, a person convicted of murder should typically suffer a
more severe punishment than a person convicted of attempted murder, even if it
was only a matter of chance that the murderers plan succeeded while the attempted
murderers failed:
The character of [a persons] wrongdoing depends [ . . . ] upon its actual outcome: it matters
to us, and should matter to him, whether he did the harm which he attempted to do. His
conviction, declaring that he committed a certain kind of wrong, should therefore reect
this aspect of his wrongdoing: as a formal way of saying look what you did! it should
distinguish between one wrongdoer who actually killed, or wounded, or damaged, and
another who tried but failed to kill, wound, or damage.32
Thus, Duff endorses making the production of certain outcomes a criminal offence
and holds that someone who fails to produce these outcomes should not be liable
for the same offence (or, in some cases, for any offence at all), regardless of their
intent.
In this volume, Andrew Ashworth represents what might be called the subjec-
tivist opposition to Duff s position. He maintains that it is fairer for the criminal
law to treat those who have made identical choices (for example, who have set re to
a building in order to kill its occupants) in the same way independently of the
outcome of their choices (that is, independently of whether the building burned
down and whether anyone was killed). Why should the lucky fact that my re
failed while yours succeeded let me escape the more severe punishment that you
face? Ashworth notes that English criminal law has displayed divergent trends on
this issue: offences of fraud and bribery are dened by what the defendant was
trying or intending to do rather than what harm or wrong he actually accom-
plished, while in other areas (such as trafc offences) there has been an unmistak-
able movement in the rst decade of this century towards greater emphasis on the
outcome of death.33
In response to the view that similar choices or intentions should be subject to
the same treatment under the criminal law, and in response to the related
subjectivist position that people with the same moral character should be treated
similarly, Duff argues that a persons actionsas opposed to her character or
32 33
Duff 1996: 352. Ashworth, this volume, 169170.
Introduction 13
outcome-independent choicesare the proper focus for her criminal liability. And
Duff argues that a persons actions cannot be understood independently of their
effects.34 Duff accordingly ties his philosophy of criminal responsibility and intent
to his philosophy of action.
Where Duff s defence of objectivism draws on a methodological respect for the
nuanced theses encoded in our moral practices, Victor Tadross essay attempts to
defend the same objectivism but on much narrower grounds, namely compensation
and deterrence. Tadross three-part thought is this: rst, my wronging someone
generates duties of compensation distinctive to the particular outcome my wrong-
ing happens to produce; second, I can discharge these duties by providing my
victim with enhanced security against future wrongdoing, and third, I can provide
such security by enduring punishment as a deterrent to others.
While Duff would approve of Tadross objectivist conclusion, he would not start
from Tadross premises alone. Although Duff is keen to respect the objectivism of
our criminal justice practices, this, he writes:
is not to say that our blame is focused only on the outcome of the wrongdoer's actions.
What he has done includes the subjective dimensions of his action; and there are
differences, which must be marked, between someone who intends to do harm, someone
who takes a reckless (or a negligent) risk of doing harm, and someone who nonculpably
causes harm. It is to say that blame, as a social response to a wrongdoer, is properly focused
on his action as a whole, as an engagement in and with the world.35
Thus Duff distinguishes not only between attempts and successes (both of which
might involve the same choices by the agent, but which differ in their outcomes),
but also between attacks and endangerments (both of which might involve the same
outcome caused by the agent, but for which the agents intentions differ).36 For
Duff, attacks are intended to cause harm, and hence are essentially harmful, while
endangerments are simply potentially harmful.
Why does Duff think that certain actions with identical outcomes should be
treated differently because of the structure of the agents intentions? He reasons:
[I]f we should be criminally liable for our actions, in so far as they are culpably related to
some criminal harm, we have stronger reason to criminalize actions which are essentially
harmful than to criminalize those which are only potentially harmful: to criminalize failed
attacks than to criminalize endangerments which cause no actual harm. For the former are
more closely related to the harm which they are intended but fail to cause, than are the latter
to the harm which they threaten to but do not actually cause.37
This reects Duff s thought that the form of wrongdoing that is most centrally a
matter for criminal lawthat is, for which the agent should most clearly be held
answerable to her fellow citizensis the attack, for he takes criminal intent to be
constitutive of certain forms of wrongdoing. Other forms of wrongdoing are
criminalizable as they resemble or come close to attacks. Thus, for example, Duff
34 35
Duff 1996: chs 911. Duff 1996: 345.
36 37
Ibid., 364. Ibid., 366.
14 Introduction
argues that murder involves suffering a harm distinct from that involved in dying
from natural causes, and the difference between these harms should be explained
(at least in part) by the fact that the murderers intention to kill constitutes her
action as a distinct kind of wrongan attack of a particular kind.38
Peter Westens essay in this volume offers a penetrating analysis of this claim.
Westen questions whether the explanation of the difference really turns on the
murderers intention. Westen suggests that someone who kills me as a foreseen but
unintended side-effect seems to harm me in the same way, or with the same level of
culpability, as someone who intends to kill me. If we accept Westens point, then
this implies that intention does not play the central role in determining the special
nature of certain forms of wrongdoing that Dufffollowing assumptions implicit
in our ordinary thinking about intentionmaintains.
Finally, Larry Alexander offers what is probably the broadest attack on this area
of Duff s claims. Alexander explicitly dismisses both the distinction between
attacks and endangerments and that between attempts and success. Instead, on
his account there is really only one master crime, that of unjustiably risking harm.
Culpability [should be construed as] a scalar function of the various harms the actor
believed he was putting at risk, the degrees of risk of the various harms he believed
his act was imposing, and his reason(s) for undertaking the act, and liability to
blame and punishment should track culpability so construed.39 Alexanders
approach offers a model radically different from Duff s in its practical implications.
It leaves no space for mere difference in outcomes to make a difference to liability.
Nor does it allow a difference in intentions to make a difference in cases where
reasons for acting and beliefs about risk are identical.40 Alexanders approach is also
radically different from Duff s in its orientation to our everyday thinking: where
Duff attempts to respect and even reect the distinctions drawn by ordinary moral
thinkers, Alexander attempts to sweep away these distinctions.
6. Criminalization
In his most recent work, in a project that he is pursuing with Lindsay Farmer,
Sandra Marshall, Massimo Renzo and Victor Tadros, Duff has examined the
principles of criminalization: the principles that should determine what forms of
action are criminal offences. Duff writes:
Rather than search (in vain) for a suitably rened master principle, we should recognize
something that is hardly surprising: that we have different reasons for criminalizing different
types of conduct (just as we can recognize, once we abandon the doomed search for a unitary
moral theory, that different kinds of conduct are morally wrong for quite different reasons).
38 39
Duff 1990: 112. Alexander, this volume, 237.
40
We are assuming, of course, that it is possible for intentions to differ when reasons for acting are
identical.
Introduction 15
The proper task for a theory of criminalization is, rather, to assemble and clarify the different
kinds of consideration that should be relevant in different contexts.41
These different considerations will, however, all need to t with Duff s claim that
only public wrongs can be criminalized. These are wrongs for which the wrongdoer
is answerable to her fellow citizens.
Furthermore, Duff does not think that every wrong for which one could justi-
ably be called to answer to ones fellow citizens must be criminalized. Instead, to
show that we have good reason to criminalize it, we would need to justify three
further claims: (i) that the wrongfulness of the conduct justies holding the
wrongdoer to account and condemning her for her wrongdoing (rather than simply
that, as in a civil case, the harm done should be compensated); (ii) that the wrong is
not such as to make negotiation or compromise reasonable; and (iii) that the wrong
is not of a kind which, despite being one for which the wrongdoer can be called to
account by her community of fellow citizens, should nonetheless on balance be left
for the victim to pursue, or decide not to pursue, for herself .42 Whether a public
wrong satises these three conditions will not, for Duff, be settled by a unitary
moral theory, but will instead depend on the variegated moral reasons alluded to in
the earlier quotation.
Each of the essays in this volume that focus on criminalization concentrates on
Duff s broadly communitarian stance that only public wrongs can be criminalized.
In his contribution, Andreas von Hirsch considers reasons to criminalize failure to
rescue. He argues that a communitarian conception of solidarity offers a less
persuasive ground for such criminalization than the concept of altruism. And it
does seem that grounding criminalization on the values of altruism (which is
usually more individually oriented), rather than solidarity (which is usually com-
munally oriented), would be incompatible with Duff s claim that we may crimi-
nalize only public wrongs. Altruism could also be seen as a matter of concern to all
citizens, however, rather than just to individuals discretely. Criminalizing a lack of
altruism when this lack is grossly unreasonable could accordingly be seen as
consistent with Duff s view. In other words, Duff s restriction of criminalization
to public wrongs does not have to mean we can only criminalize wrongs that
threaten or injure some non-individualistic good of the community, such as the
communitys survival or its cultural development. Instead, certain actions that
primarily wrong individuals (such as murder or rape) can also plausibly be under-
stood as wrongs that are the whole communitys business, and therefore as wrongs
for which the agent should be answerable to all her fellow citizens.
In her essay, however, Michelle Dempsey doubts that communities can somehow
share the wrongs done to individual victims, such that the wrongs done to individ-
ual members of the community are then wrongs against the whole community as
Duff and also Sandra Marshall contend.43 Dempsey is concerned that victims have
their reasons, and communities have their own and that the Duff-Marshall view
41 42
Duff 2010b: 20. Ibid., 212.
43
Dempsey, this volume, 2623 (quoting Marshall and Duff 1998: 20).
16 Introduction
obscures this distinction.44 Furthermore, the Duff-Marshall view opens the possibil-
ity that a wrong could be all citizens business even when the individual wronged
does not want to publicly call the wrongdoer to account. Dempsey is concerned that
this implies that victims of domestic violence, for example, should pursue prosecu-
tionsbecause they have suffered wrongs that should be conceived as the publics
businesseven when doing so risks further harm to the victim.
Lindsay Farmers essay, in turn, focuses on the criminalization of causing offence.
His socio-historical examination distinguishes two strands in English legislation: one
criminalizing the disgusting, the other criminalizing the disrespectful. Farmer high-
lights the fact that the reasons why causing offence is (or is not) deemed criminaliz-
able are often historically specic, and follows Duff in counselling against attempts to
ground criminalization in some master principle or in some single unifying category
of offense that is capable of holding this area together.45
Like Farmer, Nicola Lacey focuses on how differing historical conditions can
underpin different conceptions of what is criminalizable. She argues that sometimes
criminal law can and should be used to alter historical or cultural conceptions (for
example, about what constitutes rape), rather than simply reect these conceptions.
Lacey questions Duff s view that criminal law should embody and communicate
the values of liberal community in societies like the UK, for she wonders how such
an approach is possible in a world of radical value pluralism where the members of
the community may actually share very few values.46 To make this point vivid, she
focuses on the possibility of a cultural defence to an accusation of criminal
wrongdoingthe argument that the agents cultural background gave him no
fair opportunity to avoid violating the law. Her concern is that it is not clear how
Duff s liberal-communitarian approach would deal with such defences, or how
Duff s ideal approach can be translated into one that can handle the actual realities
of a multi-cultural value-pluralistic world.47
Finally, Michael Moore and Heidi Hurd focus on the grounds for regarding
negligence, which usually triggers only civil liability, as criminalizable. They
examine Duff s Hartian view that the inadvertent creation of unreasonable risks
can lead to criminal culpability when the inadvertence was due to the wrongdoers
unexercised capacities, but nd it problematic because they fear this test cannot be
cashed out in both a comprehensive and unied way. Indeed, they doubt that any
single theory can explain why and when some forms of negligence should lead to
criminal liability and some should not.
7. Trial
At rst, the idea of searching for something as broad as a philosophy of the criminal
trial sounds as hopeless as searching for the meaning of life. Our concept of a trial,
criminal or otherwise, is often highly stylized and diffuse, for a trial is usually seen as
44 45
Dempsey, this volume, 263. Farmer, this volume, 289.
46 47
Lacey, this volume, 293. For one possible answer to these concerns, see Bennett 2006.
Introduction 17
48 49
Duff 1986: 1012. See, e.g., Duff and Marshall 2004, 2007.
Introduction 19
50
See Duff et al. 2007: 57125. 51
See Wigmore 1940, vol. 5 } 1367 at 29.
20 Introduction
thereby supposedly ensures that the trier of fact is presented with all the facts.52 But
this assumes that there are only two kinds of factsfacts that are good for one side,
and facts that are good for the other. In reality there are always at least some facts,
and sometimes a great many facts, that lie in between. These are the grey facts
facts that could cut either way depending on what point of view the trier of fact
happens to take. Exactly how the trier of fact will see these facts is accordingly
difcult to predict. As a consequence, it is at least possible and perhaps even likely
that there will be a silent conspiracy among prosecution and defence never to
mention these facts or to introduce them into evidence, for both sides will usually
want to err on the side of caution. Why bring out something that might hurt you,
after all? And when a great many facts fall into this category, the trial becomes not a
place where all the facts are brought into the light, but a battle between extremes
where the only facts admitted are those that lie clearly on one side or the other.
The grey factsthe kinds of facts that really make up our daily lives, the kinds of
facts that often make history so ambiguous and difcult to understandare never
mentioned. As an engine for the discovery of empirical truth, the adversarial trials
tank is often just half-full. The adversary system cannot reveal the whole truth,
but only a choice between competing extremes, a highly-edited picture of the
truth that has its contrast turned way up so we can easily distinguish one version
from the other.
Of course, there are problems with the inquisitorial system too. Here we have
some of the same problems as above, for some ltering must still be done in order to
reduce history into understandable bits. There is always a delicate balancing that
must go on between taking into account all the factors that have any causal
inuence on the events under consideration and abstracting out from some of
these inuences so that we can begin to see patterns and connections and come to a
meaningful understanding of what happened. And while we do not have the
problem of the deliberate suppression of grey facts, we do have a different problem;
there are no structural guarantees that the person in charge of marshalling the
relevant facts will not be biased and therefore shade his ndings in favour of one
party or the other. So whatever form the criminal trial takes, its effectiveness as a
truth-gathering mechanism is subject to some built-in limits.
But the point for Duff is not just that there are problems with any procedure for
truth-gathering, mechanical or otherwise, and that we must therefore reject this as
an unattainable goal and embrace some other second-best guiding principle for
the design of the criminal trial. The point is that, even if these technical difculties
could be overcome, we should not see the criminal trial as a mere mechanical
process designed to resolve certain contested factual claims as best it can, for this is
too modest and limited a goal. Getting it right is not all we must dowe must also
get it right in the right way, which consists in producing a result that the entire
political community including the alleged offender can embrace for reasons that
52
For a discussion of the origins of this argument for the adversary criminal trial, see Langbein
2003.
Introduction 21
have to do with the inherent nature of the procedure and not just its outcome.53 To
do this, in turn, we need to see the criminal trial as an organic communicative
process where the alleged offender can be called to answer the charges against him.
As a result of the dialogue that necessarily ensues, the aggrieved political commu-
nity can then gradually come to a public normative judgement about the respective
moral rights and duties of the parties involved, a judgement that is not only fair but
also can be seen as fair (or at least as fair as it can be). Such a judgement both
reafrms and develops the underlying moral principles that are at stake.54 That, for
Duff and for his partners in The Trial on Trial project as well, is the morally more
ambitious goal our design of the criminal trial should primarily embrace.
One friendly criticism that might be made of Duff s work in this area is that he
may be thinking too small. In other words, instead of looking for a unied concept
of the criminal trial, we should perhaps be looking for a unied concept of the trial,
full stop. A number of theorists have argued that the traditional separation between
criminal and civil law is largely articial, and it is notoriously difcult to give a clear
and plausible account of the distinction between civil and criminal wrongs,
although Duff has perhaps come closest to doing this.55 The differences between
a civil and a criminal trial, except perhaps for the nature of the remedies that
typically ow from each, seem to not be differences in kind but differences in
degree. Why should the fact that punishment typically ows from one kind of trial
and compensation from the other suggest that different conceptions of the trial are
necessarily in play? Could not the remedies available in civil trials also be derived
from a communicative conception of the trial? Do we really need a whole other
concept of the civil trial to explain this? But these are questions for another day.
Duff has launched us down a very fruitful road of philosophical inquiry, and
nding the road is necessarily the rst and most important step toward ultimately
nding where it leads.
8. Closing Remarks
Finally, it is incumbent on us to say a few things about Duff as a colleague and
friend. Someone once said that what you need to get ahead in academia these
days is a really good enemy, for only a really good enemy will take the time to go
over your work with a ne-toothed comb and bring out every inconsistency,
ambiguity, and indeterminacy, errors that you can then correct as you strive to
make your views ever more developed and complete. What this volume shows is
that it is even better to have some really good friends, who regardless of their
agreement or disagreement with you are willing to offer that same kind of focused
53
Indeed, from early in his career Duff has emphasized that morality requires not only getting it
right, but getting it right for the right reasons. See, e.g., Duff 1980.
54
See Duff et al. 2004: 128; Duff et al. 2007: 127285; and Duff 2007a: 17593.
55
For an argument that what does or at least should determine which wrongs are criminal and
which are civil is the type and extent of punishment that must be made available to make the rights at
issue enforceable, see Reiff 2005.
22 Introduction
critique, to poke and prod your views so that you can make them less amenable to
attack, and who are even inspired to take your views forward into new areas
themselves. But most importantly, for all of us involved in editing this volume,
each of whom has from time to time needed constructive criticism to take his
own work forward, we want to note the ease with which we each have always
been able to turn to Antony Duff, who despite his ever more demanding
professional commitments has always been willing to give his time and attention
to the work of others with generosity and grace. Thus, our nal word to Antony is
simply this: Thanks.
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