Civic roles and the criminal law: parties to a crime

Speaker: Emeritus Professor R A Duff (University of Stirling)
Chair: Professor George Letsas (University College London)
Series: Quain Lecture 2 of 3

About the series

A Civic Criminal Law?

Theorists of criminal law often portray the relationship between criminal law and the citizens over whom it exercises its authority as external. The criminal law is made, administered, and enforced by officials of various kinds—legislators, police officers, prosecutors, judges, penal or correctional officials, and all the other professional functionaries of a system of criminal justice: in systems that are not pathological, they will have a Hartian internal relationship to the law, in that they will see it as their law—as a law in whose enterprise they are actively involved as authors and agents. As for ordinary citizens, however, all that is expected of them is that they obey (or disobey) the prohibitions and demands that constitute the substantive criminal law, and subject (or refuse to subject) themselves to the demands made of them by the law’s officers.

As a sociological matter, this picture is no doubt true to the way that criminal law figures in the lives of many who are subject to it: it is an external, even alien, set of institutions that demand their obedience and threaten coercive sanctions against disobedience. As a normative matter, of how we should see the criminal law, it is no doubt sometimes justified: in societies whose criminal law serves to sustain oppressively unjust regimes, citizens (at least, but not only, those who suffer such injustices) should see the law in this light. If we are engaged in a more idealistic kind of normative theorising, however, and ask what kind of criminal law we should aspire to build, this picture is inadequate: we should instead aspire to build a polity whose citizens can see its criminal law as their law—as a common law in whose enterprise they are actively (but also critically) engaged as participants. Or so Professor Duff shall argue. Central to this account of a civic criminal law will be a discussion of some of the civic roles that citizens can be called on to play (or can take on for themselves) in the enterprise of criminal law.

About the lecture

The role of juror is a formal, authoritative role within the criminal law. Citizens will also have other roles to play in relation to particular crimes: they will become, or will make themselves, ‘parties’ to a crime not just in the sense that they might play an active part in its commission, but in the sense that they become involved in it (voluntarily or not), thus acquiring civic (and sometimes legal) responsibilities in relation to it.

Three such roles are those of perpetrator, victim and witness. One question to ask is: what civic responsibilities do such parties acquire in virtue of their relationship to the crime – responsibilities, for instance, to assist in bringing the crime into the criminal justice system, and its perpetrator to justice?

Another question is: which if any of these civic responsibilities should be made into legal duties? (These questions require different answers, depending on whether they are asked in relation to a tolerably just legal system, or an unjust system.)

To answer these questions, Professor Duff will need to clarify the idea of a civic role, understood as a normative structure of rights and responsibilities defined within a practice to whose ends the role contributes; and the distinction between civic and legal responsibilities or duties.

He will argue that in principle, in a just polity, perpetrators, and victims, and witnesses have a civic responsibility to report the crime (which for the perpetrator means reporting himself) and to be ready to play their part in the criminal process: but, first, this is a civic responsibility (as distinct from a strict duty), to be exercised with discretion; and second, there are good reasons not to turn it into a legal duty.

About the speaker

Antony Duff FBA, FRSE, is Professor Emeritus in Philosophy at the University of Stirling, where he taught for forty years until 2009; from 2010-2015 he held a half-time position in the University of Minnesota Law School, where he co-founded the Robina Institute of Criminal Law and Criminal Justice. He was founding co-editor of the journal Criminal Law and Philosophy, and led two major AHRC-funded projects on the criminal trial (2002-2005) and on criminalisation (2008-2012). He is currently completing a book on criminalisation – The Realm of Criminal Law.