Democratic citizens and their criminal law

Speaker: Emeritus Professor R A Duff (University of Stirling)
Chair: Professor George Letsas (University College London)
Series: Quain Lecture 1 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

Professor Duff  will begin by sketching the kind of republican, liberal conception of a polity on which my account of criminal law will depend. Central to that conception is the notion of civil order: a normative structure of civic institutions, practices and relationships that give concrete form to what should be the citizens’ shared understanding of the civic enterprise of living together as members of the polity.

The central role of the criminal law in such a polity is to define, and to provide an appropriate, formal, public response to, a diverse range of public wrongs: wrongs that are ‘public’ in the sense that they implicate the polity’s civil order.

Citizens should be able, and willing, to see this law as their law in that it gives formal expression to the values by which they define and structure their civil order: they will view it, and relate to it, with a kind of critical respect, and will see themselves as participants in this—as in other—aspects of the civic enterprise of self-governance under the law.

One way in which this conception is actualised, in some polities, is in lay participation in the criminal process, as jurors or as lay judges (Professor Duff will leave aside the ways in which democratic citizens can participate in criminal legislation, and other formal roles that they might play in a democratic criminal law). By examining different understandings of the role of lay jurors, we can see more clearly what it is for citizens to be active but critical collaborators in the criminal law’s enterprise—and why such lay participation in the criminal process is both important and problematic.

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.