PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW This page intentionally left blank PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW Edited by RA DUFF and STUART P GREEN 1 3 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Th e several contributors, 2011 Th e moral rights of the authors have been asserted Database right Oxford University Press (maker) Crown Copyright material reproduced with the permission of the Controller, HMSO (under the terms of the Click Use licence) First published 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging-in-Publication Data Data available Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by CPI Antony Rowe, Chippenham, Wiltshire ISBN 978–0–19–955915–2 1 3 5 7 9 10 8 6 4 2 Preface We gratefully acknowledge the help given by a number of people in the planning, writing, and production of this volume. Alex Flach of Oxford University Press sug- gested the idea to us, and helped us throughout the process, as did his colleagues in the Law Department at the Press; thanks are also due to Steinvör Th öll Árnadóttir for very valuable editorial assistance. A small group of colleagues—Markus Dubber, Kim Ferzan, Doug Husak, Sandra Marshall, Paul Robinson, and Bob Weisberg— spent a day (hosted and funded by the Paul M Hebert Law Center at Louisiana State University) discussing the shape and structure of the planned volume—though they cannot be blamed for the shape that it actually took. Th e Rutgers School of Law, Newark, hosted and funded a workshop at which preliminary draft s of the papers were discussed: grateful thanks are due to the commentators who started off the discussion of each paper—Vera Bergelson, Michael Cahill, Michelle Demspey, Adil Haque, Kyron Huigens, Youngjae Lee, Alice Ristroph, and Ekow Yankah. Finally, of course, thanks are due to the authors: for their work in draft ing and redraft ing; for their patient, constructive responses to editorial suggestions and requests; and for the illuminating and stimulating papers that appear in this volume. RAD SPG This page intentionally left blank Contents List of Contributors xi Table of Cases xiii Table of Statutes, Codes, and Charters xv 1 Introduction: Searching for Foundations 1 RA Duff and Stuart P Green PART I CRIMINAL LAW AND POLITICAL THEORY 2 Criminal Law as Public Law 21 Malcolm Thorburn 3 Republicanism and the Foundations of Criminal Law 44 Richard Dagger 4 Political Th eory and the Criminal Law 67 Matt Matravers 5 Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law 83 Markus D Dubber 6 Responsibility for the Criminal Law 107 Alice Ristroph 7 Responsibility, Citizenship, and Criminal Law 125 RA Duff viii Contents PART II THE SUBSTANCE OF CRIMINAL LAW 8 Th e Resurgence of Character: Responsibility in the Context of Criminalization 151 Nicola Lacey 9 Intention as a Marker of Moral Culpability and Legal Punishability 179 Michael S Moore 10 Wrongdoing and Motivation 206 Victor Tadros 11 Understanding the Topography of Moral and Criminal Law Norms 228 Kenneth W Simons 12 Beyond the Special Part 253 Larry Alexander and Kimberly Kessler Ferzan 13 Just Prevention: Preventive Rationales and the Limits of the Criminal Law 279 Andrew Ashworth and Lucia Zedner 14 Th e Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law 304 Peter Westen 15 Th e De Minimis ‘Defence’ to Criminal Liability 328 Douglas Husak 16 Just Deserts in Unjust Societies: A Case-specifi c Approach 352 Stuart P Green PART III PROCESS AND PUNISHMENT 17 Groundwork for a Jurisprudence of Criminal Procedure 379 Paul Roberts Contents ix 18 Th e Substance-Procedure Relationship in Criminal Law 409 Donald A Dripps 19 Two Kinds of Retributivism 433 Mitchell N Berman PART IV ACROSS BORDERS AND INTO THE FUTURE 20 Piercing Sovereignty: A Rationale for International Jurisdiction Over Crimes that Do Not Cross International Borders 461 Christopher Heath Wellman 21 Criminal Law and Morality at War 481 Adil Ahmad Haque 22 Criminal Liability and ‘Smart’ Environments 507 Mireille Hildebrandt Index 533