Civic trials and punishments

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

This talk will start at 17:00 for an hour and will be followed by a discussion of all Quain lectures.

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

Those who are formally charged with crimes acquire a new role: they become defendants; if convicted, they become convicted offenders. What rights and responsibilities (civic and legal) should define these roles?

Professor Duff will argue that they too should be understood as active civic roles. This is at odds with the way in which offenders are often portrayed in penal theory and penal rhetoric: they are seen simply as passive recipients of punishment that ‘we’ impose on ‘them’. But he will argue that if criminal law is to be a civic law, we must understand ‘offender’ and ‘convicted offender’ as civic roles, with distinctive sets of responsibilities and rights, making a distinctive contribution to the civic enterprise. Central to this portrayal is a conception of criminal punishment not as something simply inflicted on the offender, but as something the offender is required to undertake as an active participant: one challenge will be to consider what specific modes of punishment could be understood in these terms—imprisonment is an obvious problem here (as it should be).

Finally, our existing practices include a further role, that of ‘ex-offender’. ‘Ex-offenders’ are those who have completed their formal sentences, but still bear the stigmata of having offended; their role is defined in largely passive terms, of the burdens or restrictions that may be laid on them, but can also involve positive legal duties. We must ask, however, whether this role should exist at all—or whether we should take more seriously the rhetoric of ‘paying one’s debt to society’, and so ‘wiping the slate clean’, by completing one’s punishment.

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.