Main source: Duff, Antony, “Theories of Criminal Law”, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = .

The Internal Structure of the Criminal Law

Once we have articulated an account of the proper aims and limits of the criminal law, we can tackle various issues about its internal structure-about the general principles and conditions of criminal liability (the so-called ‘general part’ of the criminal law), and about its definitions of specific offences (the ‘special part’). I cannot pursue these issues here, but our approach to them must clearly be based on our account of the proper purposes of the criminal law. Thus if the criminal law should aim to define, to condemn, and to call perpetrators to public account for wrongs whose character and implications are such that they properly count as ‘public’, its definitions of crimes and its principles of liability must be apt to identify such wrongs and the conditions under which agents can be justly condemned for them. In discussing such issues as whether the law should contain offences of ‘strict liability’, which can be committed by those who are not even negligent as to the harm they cause or risk; or what kind of ‘fault elements’ should be required for criminal liability, either in general or for particular crimes; or whether criminal liability should depend solely on the ‘subjective’ character of an action (on what the agent intended to do or believed herself to be doing), or also on its ‘objective’ character (its actual connection with and impact on the world); or whether and how the law should distinguish offences from defences, either substantively or procedurally; or what kinds of excuse or justification the law should recognise, and how they should be defined: we must first ask which doctrines and principles would capture the relevant kinds of wrongdoing and identify the culpable agents of such wrongs. This can only be the first stage of the discussion, since we will need to go on to ask whether those doctrines and principles can satisfy the wide range of other normative and practical constraints that must bear on a system of criminal law and justice, or how they could be adapted so as to satisfy those constraints: but it is where we must start. (For introductions to these issues see Fletcher 1978; Robinson 1997; Tadros 2005; Ashworth 2006; Dressler 2006; Simester & Sullivan 2007; Duff 2007; Gardner 2007.)

Theorists of criminal law must also attend, however, more seriously than they have often attended, to the criminal process that leads from (alleged) crime to punishment, and in particular to the criminal trial. It is through the criminal trial that criminal responsibility and liability are formally assigned, and the norms and doctrines of the substantive criminal law are articulated and applied. We therefore need an account of the proper aims and values of the criminal trial, and of the larger criminal process of which it is part-an account that can then underpin a more adequately grounded critique of our existing criminal processes. Should we, for instance, see the trial as an attempt to establish the truth (but what truth?), albeit an attempt that is constrained by a range of independent principles and rules that aim to protect us against the potentially oppressive and intrusive power of the state? Or should we see it as a process through which alleged wrongdoers are called to answer the charges that thay face and to answer for their crimes if their guilt is proved? What kinds of criminal process are appropriate to a liberal democracy that aims to treat all its members as responsible citizens? (See generally Burns 1999; Ashworth & Redmayne 2005; Duff et al 2007.)
Bibliography

Altman, A., & Wellman, C.H. (2004), “A Defense of International Criminal Law ” , 115 Ethics 35.
Ashworth, A. J. (2006), Principles of Criminal Law (5th ed.), Oxford: Oxford University Press.
Ashworth, A. J., & Redmayne, M. (2005), The Criminal Process, Oxford: Oxford University Press.
Becker, L. (1974), “Criminal Attempts and the Theory of the Law of Crimes,” Philosophy and Public Affairs 3: 262-94.
Besson, S., & Tasioulas, J. (eds.) (2008), Philosophy of International Law, Oxford: Oxford University Press.
Bianchi, H. (1994), Justice as Sanctuary: Toward a New System of Crime Control, Bloomington: Indiana University Press.
Blackstone, W. (1765-9), Commentaries on the Laws of England (4 vols), Oxford: Clarendon Press; available at www.yale.edu/lawweb/avalon/blackstone/blacksto.htm.
Boston University Law Review (1996), “Symposium: The Intersection of Tort and Criminal Law,” 76: 1-373.
Braithwaite, J. & Pettit, P. (1990), Not Just Deserts, Oxford: Oxford University Press.
Burns, R. P. (1999), A Theory of the Trial, Princeton, NJ: Princeton University Press.
Cassese, A (2003), International Criminal Law , Oxford: Oxford University Press.
Christie, N. (1977), “Conflicts as Property”British Journal of Criminology 17: 1-15.
Cotterrell, R. (1995), Law’s Community, Oxford: Oxford University Press.
Dagger, R. (1993), “Playing Fair with Punishment,” Ethics 103: 473.
Dagger, R. (2008), “Republican Punishment, Consequentialist or Retributive?,” in C. Laborde & J. Maynor (eds.), Republicanism and Political Theory, Indianapolis: Wiley.
Dan-Cohen, M. (1984), “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” Harvard Law Review 97: 625-77.
—. (2002), ” Defending Dignity” , in M. Dan-Cohen, Harmful Thoughts: Essays on Law, Self and Morality, Princeton, NJ: Princeton University Press, 150.
Dempsey, M. M. (2007), “Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean?” Modern Law Review 70: 908-35.
Devlin, P. (1965), The Enforcement of Morals, Oxford: Oxford University Press.
Dimock, S. (1997), “Retributivism and Trust,” Law and Philosophy 16: 37-62.
Dolinko, D. (1991), “Some Thoughts about Retributivism,” Ethics 101: 537-59.
Dressler, J. (2006), Understanding Criminal Law (4th ed.), New York: Lexis
Dubber, M. D. (2001), “Policing Possession: The War on Crime and the End of Criminal Law” , Journal of Criminal Law and Criminology 91: 829.
—. (2005), The Police Power: Patriarchy and the Foundations of American Government, New York: Columbia University Press.
Duff, R. A. (1986), Trials and Punishments, Cambridge: Cambridge University Press.
—. (2001), Punishment, Communication, and Community, New York: Oxford University Press.
—. (2007), Answering for Crime: Responsibility and Liability in the Criminal Law, Oxford: Hart Publishing.
Duff, R. A., Farmer, L., Marshall, S. E., and Tadros, V. (2007), The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial, Oxford: Hart Publishing.
Dworkin, G. (ed.) (1994), Morality, Harm and the Law, Boulder, Colorado: Westview Press.
Feinberg, J. (1984), Harm to Others, New York: Oxford University Press.
—. (1985), Offense to Others, New York: Oxford University Press.
—. (1986), Harm to Self, New York: Oxford University Press.
—. (1988), Harmless Wrongdoing, New York: Oxford University Press.
Fletcher, G. (1978), Rethinking Criminal Law, Boston: Little, Brown.
Gardner, J. (1998), “Crime: In Proportion and in Perspective,” in A. J. Ashworth & M. Wasik (eds.), Fundamentals of Sentencing Theory, Oxford: Oxford University Press, 31-52.
—. (2007), Offences and Defences, Oxford: Oxford University Press.
Glazebrook, P. R. (1978), “Situational Liability”in Glazebrook (ed.), Reshaping the Criminal Law, London: Stevens, 108-19.
Green, S. P. (1997), “Why it’s a Crime to Tear the Tag off a Mattress: Over-Criminalization and the Moral Content of Regulatory Offenses,” Emory Law Journal 46: 1533-1615.
—. (2005), Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime, Oxford: Oxford University Press.
Harcourt, B.E. (1999), “The Collapse of the Harm Principle” , Journal of Criminal Law and Criminology 90: 109.
Hart, H. L. A. (1968), Punishment and Responsibility, Oxford: Oxford University Press.
—. (1994), The Concept of Law (2nd ed.), Oxford: Oxford University Press.
Hirst, M. (2003), Jurisdiction and the Ambit of the Criminal Law, Oxford: Oxford University Press.
Holtug, N. (2002), “The Harm Principle” , Ethical Theory and Moral Practice 5: 357.
Hughes, G. (1958), “Criminal Omissions,” Yale Law Journal 67: 590-637.
Hulsman, L. (1986), “Critical Criminology and the Concept of Crime,” Contemporary Crises 10: 63-80.
Husak, D. (1987), Philosophy of Criminal Law, Totowa, N. J.: Rowman & Littlefield.
—. (1995), “The Nature and Justifiability of Nonconsummate Offenses,” Arizona Law Review 37: 151-83.
—. 1998, “Does Criminal Liability Require an Act?” in R. A. Duff (ed.), Philosophy and the Criminal Law, Cambridge: Cambridge University Press: 60-100.
—. (2004), “The Criminal Law as a Last Resort” , Oxford Journal of Legal Studies 24: 207.
—. (2005), “Malum Prohibitum and Retributivism” , in R. A. Duff and S. P. Green (eds.) Defining Crimes: Essays on the Special Part of the Criminal Law, Oxford: Oxford University Press, 65.
—. (2007), Overcriminalization, Oxford: Oxford University Press.
Jareborg, N. (2005), “Criminalization as Last Resort (Ultima Ratio)” , Ohio State Journal of Criminal Law 2: 521.
Kelman, M. (1981), “Interpretive Construction in the Substantive Criminal Law,” 33 Stanford Law Review: 591-673.
Kleinig, J. (1978), “Crime and the Concept of Harm,” American Philosophical Quarterly 27: 32-42.
Lacey, N., Wells, C., & Quick. O. (2003) Reconstructing Criminal Law (3rd ed.). London: LexisNexis.
Lamond, G. (2007), “What is a Crime?” , Oxford Journal of Legal Studies 27: 609.
Luban, D (2004), “A Theory of Crimes Against Humanity” , 29 Yale Journal of International Law 124.
Marshall, S. E., & Duff, R. A. (1998), “Criminalization and Sharing Wrongs,” Canadian Journal of Law & Jurisprudence 11: 7-22.
May, L. (2005), Crimes Against Humanity, New York: Cambridge University Press.
Mill, J. S. (1859), On Liberty, London: Parker.
Moore, M. S. (1993), Act and Crime, Oxford: Oxford University Press.
—. (1997), Placing Blame: A Theory of Criminal Law, Oxford: Oxford University Press.
Murphy, J. G., & Coleman, J. (1990), The Philosophy of Law (2nd ed.), Boulder, Colorado: Westview Press.
Norrie, A. W. (2001), Crime, Reason and History (2nd ed.), London: Butterworths.
Pettit, P. (1997), “Republican Theory and Criminal Punishment” , Utilitas 9: 59-79.
—. (2002), “Is Criminal Justice Politically Feasible?” , Buffalo Criminal Law Review 5: 427.
Posner, R. A. (1985), “An Economic Theory of the Criminal Law,” 85 Columbia Law Review : 1193-1231.
Raz, J. (1986), The Morality of Freedom, Oxford: Oxford University Press.
—. (1987), “Autonomy, Toleration, and the Harm Principle” , in R. Gavison (ed.), Issues in Contemporary Legal Philosophy, Oxford: Oxford University Press, 313.
Rescher, N. (1972), Welfare: The Social Issue in Philosophical Perspective, Pittsburgh: University of Pittsburgh Press.
Ripstein, A. (1999), Equality, Responsibility and the Law, Cambridge: Cambridge University Press.
—. (2006), “Beyond the Harm Principle” , Philosophy and Public Affairs 34: 215.
Robinson, P. H. (1997), Structure and Function in Criminal Law, Oxford: Oxford University Press.
Roxin, C. (2006), Strafrecht Allgemeiner Teil (4th ed.), vol. 1, Munich: CH Beck.
Schonsheck, J. (1994), On Criminalization: An Essay in the Philosophy of the Criminal Law, Dordrecht: Kluwer.
Simester, A. P., & Sullivan, G. R. (2007), Criminal Law: Theory and Doctrine (3rd ed.), Oxford: Hart Publishing.
Simester, A. P., & von Hirsch, A. (2006), Incivilities: Regulating Offensive Behaviour, Oxford: Hart Publishing.
Steiker, C. (1997), “Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide” , Georgetown Law Journal 85: 775.
Stephen, J. F. (1873/1967), Liberty, Equality, Fraternity (ed. J. White), Cambridge: Cambridge University Press.
Tadros, V. (2005), Criminal Responsibility, Oxford: Oxford University Press.
von Hirsch, A. (1996), “Extending the Harm Principle: ‘Remote’ Harms and Fair Imputation,” in A. P. Simester & A. T. H. Smith (eds.), Harm and Culpability, Oxford: Oxford University Press, 259-76.
von Hirsch, A., Garland, D., & Wakefield, A. (eds.) (2000), Ethical and Social Perspectives on Situational Crime Prevention, Oxford: Hart Publishing.
Walker, N. (1980), Punishment, Danger and Stigma, Oxford: Blackwell.
Weigend, T (1988), “The Legal and Practical Problems Posed by the Difference between Criminal Law and Administrative Penal Law” , Revue Internationale de Droit Pénal 59: 67.
Williams, B. (1976), Morality, Cambridge: Cambridge University Press.
Wohlers, W., von Hirsch, A., and Hefendehl, R. (eds.) (2003), Die Rechtsgutstheorie, Baden-Baden: Nomos Verlagsgesellschaft.
Wolfenden, J. (1957), Report of the Committee on Homosexual Offences and Prostitution (The Wolfenden Report) (Cmnd 247), London: HMSO.

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