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Antony Duff and the Philosophy

of Punishment
Mark R. Reiff and Rowan Cruft

1. Some Philosophical Questions About Punishment

A surprisingly large number of questions arise under the heading the philosophy of
punishment. Here, in what roughly conforms to the intellectual order in which
these questions might be addressed, although not necessarily the order of their
importance, are some of them:
What is punishment? Is it punishment to put someone in prison if they prefer
this to life outside? Is it punishment to put someone to death if they want to
die? From whose point of view should this question be decided?1
Whom may we punish? Can we properly punish animals, as they did, for
example, in medieval France? What about the mentally incompetent, or
What is the relationship between punishment and responsibility, in both the
causal and the moral sense? Which sense matters for purposes of the criminal
law? Can there be criminal responsibility without fault?3
Can the imposition of punishment be morally justied? Can it be morally
required? Does the justication for the institution of punishment differ from
the justication for a particular act of punishment, as some theorists contend?
Does the justication for the threat of punishment differ from the justication
for its actual imposition, as others contend?4
In what way should punishment t the crime? How do we determine what kind
and amount of punishment is due? What is the role of forgiveness and mercy?5

See, e.g., Duff 1986: 1513; Reiff 2005: 7798, 11641.
See, e.g., Duff 1986, 2007a: 1978; Hart 2008; Evans 1906.
See, e.g., Duff 1990, 2005a, 2007a, 2008; Hart and Honor 1985; Hart 2008; Moore 2009.
The number of theorists who have written on this issue is enormous, but in addition to Duff 1986
and 2001, key contemporary works include Acton 1969; Cottingham 1979; Feinberg 1970; Lacey
1988; Simmons et al. 1995; von Hirsch 1993; Walker 1991, 1999; Rawls 1955; and Kavka 1987.
See, e.g., Duff 2005b, 2007b; Davis 1986; Reiff 2005.

Antony Duff and the Philosophy of Punishment. Mark R. Reiff and Rowan Cruft.
Oxford University Press 2011. Published 2011 by Oxford University Press.
4 Introduction
Are attempts to be punished as severely as completed crimes? Less severely?
Not at all? What kind of act might constitute an attempt?6
What kind of conduct should be punishable under the criminal law, and what
considerations should be taken into account here? The agents intent?
The harm caused? The degree to which the harm caused can be compensated,
if at all?7
What defences should be available to those who have committed such acts?
What is the difference between a justication and an excuse?8
Are there any moral limits on the kind and extent of punishment that may be
imposed, regardless of the seriousness of the crime? Can we, as an act of
punishment, take a life? Can we engage in torture, or in cruel and degrading
Who decides whether an accused person is guilty and should be punished, and
by what process are these decisions to be made? Is there something special
about what we typically call a criminal trial, or are there other ways of
determining contested matters that would be equally satisfactory? What
restrictions might apply to whatever decision-making process we employ?10
What is the role of punishment in international law? Are the issues different
here, or only the extent of the crimes? Are nations to be punished just like
individuals, or is it wrong to impose hardships on people for the actions of
their leaders?11
What is the role of punishment in transitional justice? Are actual prosecutions
necessary, or are truth and reconciliation commissions sufcient? Is it some-
times morally permissible for a community undergoing a political transition to
leave past crimes unanswered and simply look forward into the future?12
Of course, many of these questions are intertwined in various ways, some could be
derived from and therefore subsumed by others, and we have unavoidably had to
leave some questions out. The answers to some of these questions, especially the
question of justication, may also heavily inuence if not determine the answer to
many of the others. But spelling these questions out is important, for it enables us
to see that what are often treated as questions arising under the broader and blander
category of the philosophy of the criminal law really have a unifying feature that is
not so often recognizedthey are all driven by a concern for the appropriateness
of punishment.

See, e.g., Duff 1996.
See, e.g., Duff 1993, 1998, 2002a, 2002b, 2007a: 79174; Husak 2008; Hart 1963; Feinberg
1984; Reiff 2005.
See, e.g., Duff 2004, 2007a: 195228, 26398, 2010b.
See, e.g., Duff 2001: 1525, 2005c; Kramer 2011; Shue 1978; Sussman 2005.
See, e.g., Duff et al. 2004, 2006, 2007.
See, e.g., Duff 2010a; May 2005, 2007, 2008.
See, e.g., Duff et al. 2007: 294300; Elster 2004; Pedain 2008.
Introduction 5

Recognizing this is especially important in the present context, for throughout

his long and distinguished continuing career, Antony Duff has had something to
say about all these questions, and a great deal to say about many of them. It is his
concern for the appropriateness of punishment, however, that unites his discussions
of these questions and gives his work an overarching cohesiveness that the works of
other criminal law theorists often lack. Of course, given the breadth and the depth
of his work, we cannot summarize everything Duff has contributed to this area of
philosophical inquiry. But we will try to give a brief introduction to ve areas of his
philosophical thought on punishment, at least one of which each paper in this
volume has attempted to address.
The rst is perhaps the question that looms over all the othersthe question of
whether and if so how the imposition of punishment can be morally justied. What
Duff has had to say about this question is no doubt one of his most important
contributions, but there are other topics on which Duff s work has been highly
inuential too. One is the question often paired with punishment, that of respon-
sibility, or what connects people to events. Another is the question of attempts, or
when is an act in furtherance of a crime a crime itself, as opposed to merely the
innocent, non-criminal behaviour it appears to be. Another still is the question of
criminalization, or what kind of conduct should be subject to the sanctions of the
criminal law. And nally there is the question of the philosophy of trial, or how do
we go about deciding exactly who is guilty of what and what punishment (if any) is
due, a topic on which Duff is an undoubted pioneer.

2. A Short Biographical Note

We will begin, however, with some brief biographical comments, for we want to
highlight some of the people and historical currents that inuenced Duff s attitudes
and his work. Duff was born in Hampshire (England) in 1945 and went to Oxford
to read Greats, which combines classical language, history, and philosophy with
modern philosophy, in 1963. His rst attraction to philosophy, however, was not
to the philosophy of law, but to the philosophy of action, especially as set forth in
the works of Aristotle. Only toward the end of his time in Oxford, when he
attended seminars given by H. L. A. Hart and the rst lectures by Harts successor,
Ronald Dworkin, did he begin to be drawn to the philosophy of law. And within
the philosophy of law he was particularly attracted to the philosophy of criminal
law, for there seemed to be some interesting and perhaps even practical philosophi-
cal work to be done there. His reaction to some of the high-prole law cases of the
time was that even when the judgments issued were correct, the reasoning behind
them was often poorly expressed, at least in philosophical terms. It would be useful
if some of the answers to the problems that these cases tried to address could be
reconstructed using the more rened and rigorous language and distinctions
available to the analytic philosopher.
Duff s rst academic appointment came in 1968, when he travelled to Seattle in
the United States to spend a year as a visiting lecturer and tutor in philosophy at the
6 Introduction
University of Washington. This was a tumultuous time throughout the world, of
course, and this was especially true in the United States. The war in Vietnam, the
civil rights movement, and the social, political, and cultural unrest these events
provoked, together with the ever-expanding set of rights being granted to criminal
defendants by the Warren Court, all raised deep and important philosophical and
political questions about the proper role and implementation of the criminal law.
For those in the middle of such events, it was practically impossible not to become
acutely aware of the social and political ramications of such questions no matter
what ones interests and inclinations. Coming from Oxford, Duff had already been
immersed in the views of classical liberalism, and he therefore already had a point of
view from which to interpret these events. But his time at the University of
Washington gave his classical liberalism a vivid contemporary context and ulti-
mately cemented his desire to work in an area of philosophy where there were
interesting and important social and political issues to be addressed.
After nishing his year in Seattle, Duff returned to Oxford to begin work on his
DPhil. In just one year, however, he had already obtained a permanent academic
appointment. This, of course, was at the University of Stirling, where together with
his long-time partner, the legal and political philosopher Sandra Marshall, Duff
would spend his entire career (although he now also spends part of each year at the
University of Minnesota), his reputation rising with that of the University. Upon
arriving at Stirling, Duff worked initially on aspects of the philosophy of action, the
interest that had taken him into philosophy in the rst place. Soon, however, he
turned to the issues in the philosophy of punishment for which he is now most
well-known and on which he has concentrated ever since.

3. Justication

Justication, as Duff notes in his introduction to Punishment, Communication,

and Community (2001), is the central question in philosophical discussions of
punishment.13 This is because punishment has long been thought to be morally
problematic. It is morally problematic because it involves doing things to people
that (when not described as punishment) seem morally wrong.14 It is also
problematic, one might add, because even after more than two thousand years
there is no consensus about what this justication might be or even whether a viable
justication actually exists. If we are going to continue to do these things to people,
or have them done in our name and on our behalf, we accordingly owe it to them
and to ourselves to try to resolve the uncertainty that the controversy over the
question of justication continues to provoke.
Justications for the imposition of punishment broadly fall into three general
categories: consequentialist, retributivist, and mixed. But there are many variations
within each category, far too many for us to give each individual version of these

13 14
Duff 2001: xi. Duff and Garland 1994: 2.
Introduction 7

justications the attention that in other circumstances it might be due.15 So instead

of trying to summarize all the possible justications for punishment that are
currently on offer, we will turn directly to Duff s own inuential perspective on
the question of justication and discuss the views of those not represented in this
volume only to the extent necessary to put Duff s own views in their proper
Throughout his intellectual life, Duff has been suspicious of consequentialism,
of evaluating an act purely by reference to its (probable) effects. Accordingly, he
rejects the idea that punishment could be justied by its general deterrent effect,
even assuming such an effect could be proved, which is itself controversial, or by its
rehabilitative effect, which, as Duff notes, is probably a demonstrably impossible
goal given the history of continuously high recidivism rates.16 Instead, Duff is
attracted to views of the retributivists, those who argue that punishment has
intrinsic and not merely instrumental value, that it is justied because it is in
some sense deserved, although as Duff notes, the retributivist label has been
applied to such different theories that its utility may now be doubted.17 Indeed,
Duff is a particularly humanist retributivistwhile retributivists often see pun-
ishment as something done to offenders, Duff sees punishment as a kind of process,
something that is done with offenders, a process in which the offender is an
important participant. The view that Duff articulates has accordingly come to be
known as the communicative theory of punishment. That is, for Duff, the purpose
of punishment is to communicate to the offender the censure that his or her crimes
This is similar to expressive theories of punishment, which also justify punish-
ment by reference to the expression it makes of societys disapproval of the
offenders action.18 It is also similar to educative theories of punishment, which
aim not just at expressing societys censure but at educating the offender so that he
can understand why what he did was wrong and be in a position to rehabilitate
himself and reform.19 But Duff s view goes beyond this, because communication
implies a two-way conversation, not a one-way lecture. It aims not just to
communicate censure but to thereby persuade offenders to repentance, self-reform,
and reconciliation.20 It is thus important for Duff that the offender be involved in
this process, that he actually answer for what he has done, that he be the subject of
the process of punishment and not just its object.
To understand Duff s communicative theory fully it is necessary to see it in the
context of his overall view about the proper nature of social and political life. As
Duff says:

Those looking for a comprehensive discussion of the various justications on offer should see
Duff and Garland 1994, Duff 1986, and Duff 2001. Other helpful and important summaries include
Cottingham 1979; Walker 1991, 1999; Honderich 2006; and Davis 2009.
Duff and Garland 1994: 24.
Duff and Garland 1994: 6.
See, e.g., Feinberg 1965; Skillen 1980; Primoratz 1989; von Hirsch 1993; and Metz 2000.
See Hampton 1984.
Duff 2001: xix.
8 Introduction
A normative account of punishment must include a conception of crime as that which is to
be punished. Such a conception of crime presupposes a conception of the criminal lawof
its proper aims and content, of its claims on the citizen. Such a conception of the criminal
law presupposes a conception of the stateits proper role and functions, of its relation to its
citizens. Such a conception of the state must include a conception of society and of the
relation between state and society.21
Among the many such conceptions of these relations, Duff draws on two. One is
liberalism, the tradition that many other criminal law theorists also embrace. The
other is communitarianism, a form of quasi-perfectionism that can arise on either
the left or the right. Duff s particular communitarian attitudes, however, draw
more heavily on the left or liberal end of the perfectionist spectrum, for while
Duff ascribes a non-derivative moral identity and importance to communityan
importance that traditional liberals assign only to communities derivatively, as
collections of individualshe does not give the community moral priority over
the individual, as communitarians on the right (and some consequentialists) often
do.22 Duff also embraces and assigns the highest priority to many other values of
traditional liberalism, values that many communitarians on the right either do not
take so seriously or actually reject outright. Indeed, Duff maintains:
A liberal political community [is] structured by the dening values of autonomy, freedom,
privacy and pluralism; the role of the criminal law in such a polity [is to dene or create] a
range of public wrongs that concern the whole community; and the role of the criminal
trial [is to be] a process through which members of the community are called to answer for
their alleged commissions of such wrongs.23
As a liberal communitarian, then, Duff does not view punishment as simply
something the community doles out on behalf of the victims of criminal behaviour,
whoever these may be. On the contrary, the community is not merely a moral agent
for the victim, but an independent moral participant in the communicative
dialogue that punishment involves, along with the offender and the victim.24
Neither the offender nor the victim has a right to veto condemnation of the
crimethey merely have a moral right (and to some extent, a duty) to make
their views known and to participate in various ways in the process of determining
what actually happened, why it happened, the nature of any injury caused, and how
the community should respond. The communitys voice accordingly has a moral
weight these other voices lack. But all three voices are important parts of the
communicative process, and all have a distinct role to play in the tripartite moral
dialogue that under Duff s vision trial and punishment should entail.
A nal point to note if we are to understand fully Duff s views on punishment is
that Duff is very concerned about the relationship between the ideal and the actual,
between theory and practice.25 His communicative theory is ideal in the sense that

Duff 2001: 35.
For a discussion of these varying attitudes toward the community, see Reiff 2007.
Duff 2001: 75.
See Duff and Marshall 2004.
See, e.g., Duff 1986: 26799; Duff 2001: 1759.
Introduction 9

it is an attempt to set out a coherent aspiration for the institution of punishment, an

ideal from which many of the details of our current practice can be derived. Duff is
quick to acknowledge, however, that in many cases our current practice fails to
meet this ideal. But it is important to him that our current practice of trial and
punishment could be revised (along with various other aspects of our political,
social, and economic practices that are currently unjust) to form a coherent whole
that would meet this ideal. In other words, Duff wants his theory to be practical
Duff sees himself as a critic of our current practice, but a critic who aims to develop
a theory that can be implemented in the world in which we live and not just in the
journals of the academy. Indeed, he sees himself as engaged in a critical rational
reconstruction of the criminal law, that is, an endeavour designed to challenge the
criminal law to be true to itself, whilst helping to (re)construct the selfthe aims,
principles, and valuesto which it is to be true.26
Four challenges to Duff s communicative theory of justication are presented in
this volume. Jeffrie Murphy, who has written extensively on the role of forgiveness
and mercy,27 claims that Duff s communicative theory pays insufcient attention
to the effect of repentance or, more precisely, places this effect in the wrong
category. While Duff suggests that the repentant offender deserves no less punish-
ment than the unrepentant offendernotwithstanding that repentance invites
mercyMurphy suggests that a reduction in sentence for the repentant offender
is not just a matter of mercy, but a matter of justice. John Tasioulas, in contrast,
approaches Duff s views on punishment, mercy, and repentance from a different
direction. Focusing specically on Duff s inuential 2007 essay The Intrusion of
Mercy,28 Tasioulas argues that Duff is correct when he claims that considerations
of mercy (and repentance) do not bear on how much punishment the offender
deserves. Where Duff errs is in thinking that desert is the only consideration
relevant to determining how much punishment is justied as censure for the
offenders wrongdoing. For Tasioulas, mercy and desert are both relevant when
making this determination and are both internal to the question of the justness of
punishment, not external to it, even though the elements of mercy and desert are
separate and distinct.
In a related challenge, Kimberley Brownlee argues that because punishment is
imposed, it does not really form part of a moral dialogue, even though offenders may
receive lighter sentences by repenting and apologizing. While this does not invali-
date Duff s theory of the justication for punishment, Brownlee concedes, it does
suggest that the communicative account may amount to more of a loose metaphor
than a precise description. Finally, Matt Matravers, who is sympathetic to Duff s
communicative theory and is a communicative theorist of sorts himself, worries
that the communicative theory may have trouble explaining why similar offences
deserve the same censure when the degree to which each offender will be responsive
to censure will differ. Matravers also questions whether the communicative theory

Duff 2009: 251.
See Murphy 2004 and Murphy and Hampton 1998.
Duff 2007b.
10 Introduction
can justify the use of hard treatment rather than moral condemnation as an
expression of censure in most cases when there are some cases, and perhaps even
many, in which hard treatment will not be necessary to fully communicate to an
offender the nature and wrongfulness of his offence and encourage him to apologize
and repent.

4. Responsibility

To begin with, Duff stresses the importance of distinguishing a persons responsi-

bility for an action from that persons liability to punishment or blame for that
Liabilityto criminal punishment or to moral blameis grounded in responsibility: I can
be liable to punishment or blame for X only if I am held responsible for X. But responsibility
does not entail liability, since I can accept responsibility for X but avert liability by offering a
suitably exculpatory answer.29
And by responsibility, of course, Duff means moral responsibility rather than mere
causal responsibility, which Duff sees as a necessary but not sufcient condition for
moral responsibility (at least in all but the most unusual circumstances). But the key
to his conception of responsibility, like his conception of justication, is the idea
that responsibility entails being called to answer to ones community. For Duff, to
be criminally morally responsible is to be answerable to all ones fellow citizens,
while non-criminal moral responsibilities involve answerability to smaller groups:
my responsibilities as a parent or child involve being answerable to my family, for
example, while my responsibilities as a friend involve being answerable to my
friends. On the other hand, international criminal moral responsibility involves
answerability to larger groups: not merely to ones fellow citizens, but potentially to
all the citizens of the world.
In his contribution to this volume, John Gardner focuses on two areas in which
he questions Duff s conception of criminal responsibility. First, Gardner disputes
Duff s claim that mere citizens have no reason to call people to account (that is, to
hold them responsible) for private wrongs that occur within intimate relationships
such as friendship. Gardner thinks that everyone has some reason to hold the
wrongdoer answerable in connection with any wrong. Its just that in many private
cases this reason is defeated by countervailing considerations. Second, Gardner
claims that Duff is tempted by the thought that what grounds a persons
(or groups) standing to call someone to answer is the value of their prior relation-
ship, whatever that relationship may be. While the answerability of one friend to
another might indeed be justied by the independent value of their relationship,
Gardner doubts that an agents responsibility under the criminal law could be
justied by the prior value of some special relationship between that agent and
those to whom she is answerable. Instead, the criminal laws legitimate authority

Duff 2007a: 1516.
Introduction 11

over me is normally the same [and grounded in the same way] whether I am a citizen,
a resident, a tourist, an ofcial guest, a secret migrant.30
Alon Harels essay can be read as defending Duff against this charge. Harel
argues that Duff s conception of responsibility is justied by how it ensures that
appropriately circumscribed groups (citizens, friends, universities, and so on) are
self-governing. For Harel, a persons answerability to other group members, and
not to outsiders, is necessary if the group is to be fully self-governing. Applied to
Duff s conception of criminal responsibility, the result is republican or semi-
republican criminal law theory under which citizens are called upon to govern
Whether one accepts Gardners criticisms or Harels defence, however, Duff s
account of responsibility has powerful implications: it entails that criminal respon-
sibility is not simply answerability to the victim, but to the community at large. And
because Duff s account of responsibility (like his account of justication) empha-
sizes the need for a tripartite moral dialogue, it implies something about the kinds
of people (infants, the inrm, and so on) that can be held criminally responsible
(that is, answerable to their community) and what kinds of incapacities (such as
severe mental health difculties) might affect their responsibility. It also prompts
questions about the nature of the responsibilities owed to the international com-
munity, and about the nature of the responsibilities that people owe to commu-
nities they visit but of which they are not members.
The question about what responsibilities we might owe to the entire world is the
one that Raimond Gaita seeks to address in his contribution to this volume. Gaita
examines the nature of genocide, and explores how the implications of such a crime
can and should be seen by those attempting to come to grips with it. Gaita argues
that genocide is not merely a crime against the particular group that is its target, but
rather a crime against the entire world. The community to whom one is called to
answer for such a crime is therefore the community of humanity. What he
demonstrates is how Duff s account of criminal responsibility can help us under-
stand why genocide is sometimes called the crime of crimes, and why the moral
responsibilities and duties of every member of humanity are involved whenever and
wherever such a crime may be committed.
Douglas Husaks essay moves from asking who should be called to account to
their fellow citizensand when they should be called to accountto asking what
they might say if required to. He takes his cue from Duff s suggestion that in
addition to excuses and justications, warrants (or putative justications) can
qualify as exculpatory answers when called by ones community to account. Husak
goes on to consider further exculpatory defences, such as that the defendants
conduct was admittedly wrongful but not wrongful enough, which defy clear
classication as either justication or excuse. He concludes that the liability-
averting answers of an agent who is responsibleand who thus, according to Duff,

30 31
Gardner, this volume, 95. Harel, this volume, 117.
12 Introduction
is answerable to her fellow citizensneed not be conned to these two categories.
Criminal liability is more complex.

5. Attempts
It is perhaps no surprise that most of the reaction to Duff s work on attempts
focuses on the importance he accords to both an actions outcomes and an agents
intentions, for many theorists today focus on intentions exclusively. For Duff,
however, outcomes are also centrally relevant to the degree of an agents liability,
even where these are dependent in part on luck and therefore not strictly within the
agents control. For example, a person convicted of murder should typically suffer a
more severe punishment than a person convicted of attempted murder, even if it
was only a matter of chance that the murderers plan succeeded while the attempted
murderers failed:
The character of [a persons] wrongdoing depends [ . . . ] upon its actual outcome: it matters
to us, and should matter to him, whether he did the harm which he attempted to do. His
conviction, declaring that he committed a certain kind of wrong, should therefore reect
this aspect of his wrongdoing: as a formal way of saying look what you did! it should
distinguish between one wrongdoer who actually killed, or wounded, or damaged, and
another who tried but failed to kill, wound, or damage.32
Thus, Duff endorses making the production of certain outcomes a criminal offence
and holds that someone who fails to produce these outcomes should not be liable
for the same offence (or, in some cases, for any offence at all), regardless of their
In this volume, Andrew Ashworth represents what might be called the subjec-
tivist opposition to Duff s position. He maintains that it is fairer for the criminal
law to treat those who have made identical choices (for example, who have set re to
a building in order to kill its occupants) in the same way independently of the
outcome of their choices (that is, independently of whether the building burned
down and whether anyone was killed). Why should the lucky fact that my re
failed while yours succeeded let me escape the more severe punishment that you
face? Ashworth notes that English criminal law has displayed divergent trends on
this issue: offences of fraud and bribery are dened by what the defendant was
trying or intending to do rather than what harm or wrong he actually accom-
plished, while in other areas (such as trafc offences) there has been an unmistak-
able movement in the rst decade of this century towards greater emphasis on the
outcome of death.33
In response to the view that similar choices or intentions should be subject to
the same treatment under the criminal law, and in response to the related
subjectivist position that people with the same moral character should be treated
similarly, Duff argues that a persons actionsas opposed to her character or

32 33
Duff 1996: 352. Ashworth, this volume, 169170.
Introduction 13

outcome-independent choicesare the proper focus for her criminal liability. And
Duff argues that a persons actions cannot be understood independently of their
effects.34 Duff accordingly ties his philosophy of criminal responsibility and intent
to his philosophy of action.
Where Duff s defence of objectivism draws on a methodological respect for the
nuanced theses encoded in our moral practices, Victor Tadross essay attempts to
defend the same objectivism but on much narrower grounds, namely compensation
and deterrence. Tadross three-part thought is this: rst, my wronging someone
generates duties of compensation distinctive to the particular outcome my wrong-
ing happens to produce; second, I can discharge these duties by providing my
victim with enhanced security against future wrongdoing, and third, I can provide
such security by enduring punishment as a deterrent to others.
While Duff would approve of Tadross objectivist conclusion, he would not start
from Tadross premises alone. Although Duff is keen to respect the objectivism of
our criminal justice practices, this, he writes:
is not to say that our blame is focused only on the outcome of the wrongdoer's actions.
What he has done includes the subjective dimensions of his action; and there are
differences, which must be marked, between someone who intends to do harm, someone
who takes a reckless (or a negligent) risk of doing harm, and someone who nonculpably
causes harm. It is to say that blame, as a social response to a wrongdoer, is properly focused
on his action as a whole, as an engagement in and with the world.35
Thus Duff distinguishes not only between attempts and successes (both of which
might involve the same choices by the agent, but which differ in their outcomes),
but also between attacks and endangerments (both of which might involve the same
outcome caused by the agent, but for which the agents intentions differ).36 For
Duff, attacks are intended to cause harm, and hence are essentially harmful, while
endangerments are simply potentially harmful.
Why does Duff think that certain actions with identical outcomes should be
treated differently because of the structure of the agents intentions? He reasons:
[I]f we should be criminally liable for our actions, in so far as they are culpably related to
some criminal harm, we have stronger reason to criminalize actions which are essentially
harmful than to criminalize those which are only potentially harmful: to criminalize failed
attacks than to criminalize endangerments which cause no actual harm. For the former are
more closely related to the harm which they are intended but fail to cause, than are the latter
to the harm which they threaten to but do not actually cause.37
This reects Duff s thought that the form of wrongdoing that is most centrally a
matter for criminal lawthat is, for which the agent should most clearly be held
answerable to her fellow citizensis the attack, for he takes criminal intent to be
constitutive of certain forms of wrongdoing. Other forms of wrongdoing are
criminalizable as they resemble or come close to attacks. Thus, for example, Duff

34 35
Duff 1996: chs 911. Duff 1996: 345.
36 37
Ibid., 364. Ibid., 366.
14 Introduction
argues that murder involves suffering a harm distinct from that involved in dying
from natural causes, and the difference between these harms should be explained
(at least in part) by the fact that the murderers intention to kill constitutes her
action as a distinct kind of wrongan attack of a particular kind.38
Peter Westens essay in this volume offers a penetrating analysis of this claim.
Westen questions whether the explanation of the difference really turns on the
murderers intention. Westen suggests that someone who kills me as a foreseen but
unintended side-effect seems to harm me in the same way, or with the same level of
culpability, as someone who intends to kill me. If we accept Westens point, then
this implies that intention does not play the central role in determining the special
nature of certain forms of wrongdoing that Dufffollowing assumptions implicit
in our ordinary thinking about intentionmaintains.
Finally, Larry Alexander offers what is probably the broadest attack on this area
of Duff s claims. Alexander explicitly dismisses both the distinction between
attacks and endangerments and that between attempts and success. Instead, on
his account there is really only one master crime, that of unjustiably risking harm.
Culpability [should be construed as] a scalar function of the various harms the actor
believed he was putting at risk, the degrees of risk of the various harms he believed
his act was imposing, and his reason(s) for undertaking the act, and liability to
blame and punishment should track culpability so construed.39 Alexanders
approach offers a model radically different from Duff s in its practical implications.
It leaves no space for mere difference in outcomes to make a difference to liability.
Nor does it allow a difference in intentions to make a difference in cases where
reasons for acting and beliefs about risk are identical.40 Alexanders approach is also
radically different from Duff s in its orientation to our everyday thinking: where
Duff attempts to respect and even reect the distinctions drawn by ordinary moral
thinkers, Alexander attempts to sweep away these distinctions.

6. Criminalization
In his most recent work, in a project that he is pursuing with Lindsay Farmer,
Sandra Marshall, Massimo Renzo and Victor Tadros, Duff has examined the
principles of criminalization: the principles that should determine what forms of
action are criminal offences. Duff writes:
Rather than search (in vain) for a suitably rened master principle, we should recognize
something that is hardly surprising: that we have different reasons for criminalizing different
types of conduct (just as we can recognize, once we abandon the doomed search for a unitary
moral theory, that different kinds of conduct are morally wrong for quite different reasons).

38 39
Duff 1990: 112. Alexander, this volume, 237.
We are assuming, of course, that it is possible for intentions to differ when reasons for acting are
Introduction 15
The proper task for a theory of criminalization is, rather, to assemble and clarify the different
kinds of consideration that should be relevant in different contexts.41
These different considerations will, however, all need to t with Duff s claim that
only public wrongs can be criminalized. These are wrongs for which the wrongdoer
is answerable to her fellow citizens.
Furthermore, Duff does not think that every wrong for which one could justi-
ably be called to answer to ones fellow citizens must be criminalized. Instead, to
show that we have good reason to criminalize it, we would need to justify three
further claims: (i) that the wrongfulness of the conduct justies holding the
wrongdoer to account and condemning her for her wrongdoing (rather than simply
that, as in a civil case, the harm done should be compensated); (ii) that the wrong is
not such as to make negotiation or compromise reasonable; and (iii) that the wrong
is not of a kind which, despite being one for which the wrongdoer can be called to
account by her community of fellow citizens, should nonetheless on balance be left
for the victim to pursue, or decide not to pursue, for herself .42 Whether a public
wrong satises these three conditions will not, for Duff, be settled by a unitary
moral theory, but will instead depend on the variegated moral reasons alluded to in
the earlier quotation.
Each of the essays in this volume that focus on criminalization concentrates on
Duff s broadly communitarian stance that only public wrongs can be criminalized.
In his contribution, Andreas von Hirsch considers reasons to criminalize failure to
rescue. He argues that a communitarian conception of solidarity offers a less
persuasive ground for such criminalization than the concept of altruism. And it
does seem that grounding criminalization on the values of altruism (which is
usually more individually oriented), rather than solidarity (which is usually com-
munally oriented), would be incompatible with Duff s claim that we may crimi-
nalize only public wrongs. Altruism could also be seen as a matter of concern to all
citizens, however, rather than just to individuals discretely. Criminalizing a lack of
altruism when this lack is grossly unreasonable could accordingly be seen as
consistent with Duff s view. In other words, Duff s restriction of criminalization
to public wrongs does not have to mean we can only criminalize wrongs that
threaten or injure some non-individualistic good of the community, such as the
communitys survival or its cultural development. Instead, certain actions that
primarily wrong individuals (such as murder or rape) can also plausibly be under-
stood as wrongs that are the whole communitys business, and therefore as wrongs
for which the agent should be answerable to all her fellow citizens.
In her essay, however, Michelle Dempsey doubts that communities can somehow
share the wrongs done to individual victims, such that the wrongs done to individ-
ual members of the community are then wrongs against the whole community as
Duff and also Sandra Marshall contend.43 Dempsey is concerned that victims have
their reasons, and communities have their own and that the Duff-Marshall view

41 42
Duff 2010b: 20. Ibid., 212.
Dempsey, this volume, 2623 (quoting Marshall and Duff 1998: 20).
16 Introduction
obscures this distinction.44 Furthermore, the Duff-Marshall view opens the possibil-
ity that a wrong could be all citizens business even when the individual wronged
does not want to publicly call the wrongdoer to account. Dempsey is concerned that
this implies that victims of domestic violence, for example, should pursue prosecu-
tionsbecause they have suffered wrongs that should be conceived as the publics
businesseven when doing so risks further harm to the victim.
Lindsay Farmers essay, in turn, focuses on the criminalization of causing offence.
His socio-historical examination distinguishes two strands in English legislation: one
criminalizing the disgusting, the other criminalizing the disrespectful. Farmer high-
lights the fact that the reasons why causing offence is (or is not) deemed criminaliz-
able are often historically specic, and follows Duff in counselling against attempts to
ground criminalization in some master principle or in some single unifying category
of offense that is capable of holding this area together.45
Like Farmer, Nicola Lacey focuses on how differing historical conditions can
underpin different conceptions of what is criminalizable. She argues that sometimes
criminal law can and should be used to alter historical or cultural conceptions (for
example, about what constitutes rape), rather than simply reect these conceptions.
Lacey questions Duff s view that criminal law should embody and communicate
the values of liberal community in societies like the UK, for she wonders how such
an approach is possible in a world of radical value pluralism where the members of
the community may actually share very few values.46 To make this point vivid, she
focuses on the possibility of a cultural defence to an accusation of criminal
wrongdoingthe argument that the agents cultural background gave him no
fair opportunity to avoid violating the law. Her concern is that it is not clear how
Duff s liberal-communitarian approach would deal with such defences, or how
Duff s ideal approach can be translated into one that can handle the actual realities
of a multi-cultural value-pluralistic world.47
Finally, Michael Moore and Heidi Hurd focus on the grounds for regarding
negligence, which usually triggers only civil liability, as criminalizable. They
examine Duff s Hartian view that the inadvertent creation of unreasonable risks
can lead to criminal culpability when the inadvertence was due to the wrongdoers
unexercised capacities, but nd it problematic because they fear this test cannot be
cashed out in both a comprehensive and unied way. Indeed, they doubt that any
single theory can explain why and when some forms of negligence should lead to
criminal liability and some should not.

7. Trial
At rst, the idea of searching for something as broad as a philosophy of the criminal
trial sounds as hopeless as searching for the meaning of life. Our concept of a trial,
criminal or otherwise, is often highly stylized and diffuse, for a trial is usually seen as

44 45
Dempsey, this volume, 263. Farmer, this volume, 289.
46 47
Lacey, this volume, 293. For one possible answer to these concerns, see Bennett 2006.
Introduction 17

the product of a large number of disparate moral concerns rather than as an

overarching moral idea in itself, one that provides a common source for and
therefore unites the many specialized and discrete moral rules that are associated
with a trial. But Duff helps us see that there is, or at least that there can be, a
philosophy of the criminal trial, and that recognizing this can produce some
surprising insights. By developing this idea of the criminal trial as a moral concept
in itself rather than a mere catch-all category for the various procedural rules that
are ordinarily thought of as making it up, Duff demonstrates that there is a unity to
these procedural rules that we may have missed. Indeed, having a unied concept of
the criminal trial can help us develop these rules in a more coherent and comple-
mentary way than we might if we viewed each of these rules as independent moral
ends in themselves, especially given the number of procedural questions we have to
consider. For example, should a jury decide questions of fact or should a judge?
How should the jury be composed? Must the accused be present? Is this a right or a
duty? Must he be represented by counsel? Must he be apprised of the charges
against him and given access to all the evidence in the prosecutions possession,
including evidence that might be exculpatory? Should the accused be allowed to
plead guilty without some determination being made that he is in fact guilty?
Should the accused be allowed to plead guilty to lesser charges in exchange for
dismissal of more serious charges against him? And so on.
Of course, rather than consider each of these questions as if it were the sole
occupant of its own moral island, we could instead see them as part of the broader
moral question What is due process? or, more particularly, What process is due?
Duff wonders, however, how we can decide what process is due if we dont have a
concept of what that process is. A criminal trial is a very different kind of enterprise
from (say) a football match, so we had better think about what we mean by a
criminal trial before we get down to designing aspects of the process itself
especially if there is more than one way of instantiating the trial as a moral ideal,
as there almost certainly is. And of course, if there are different visions of the trial as
a moral ideal that can be identied and explored, we ought to know which one we
are trying to instantiate before we attempt to do so. Indeed, given the controversy
currently surrounding the trial of alleged terrorists held at Guantanamo Bay and
other facilities, coming to some sort of considered judgement on what a criminal
trial is and what it is trying to achieve seems especially important. So Duff s holistic
approach to this question is of critical contemporary relevance, and it gives us a way
of tackling these issues that no other theorist has really attempted to present.
Duff s sustained effort to articulate a unied moral concept of the criminal trial
begins with Trials and Punishments (1986), and receives its most recent and
thorough expression in The Trial on Trial Volume 3: Towards a Normative Theory
of the Criminal Trial (2007), which Duff produced with Lindsay Farmer, Sandra
Marshall, and Victor Tadros. In Trials and Punishments, Duff says:
Three kinds of account may be offered of the trial and its rationale. The rst portrays the
trial in purely instrumental terms as a means to certain further ends; its procedures should be
those which will enable it to serve those ends most efciently. The second also takes a
18 Introduction
consequentialist or instrumentalist view of the justifying aims of a system of criminal trials,
but allows that our pursuit of those aims is constrained by certain independent values: some
of the trials provisions are to be explained and justied by reference to those non-
consequentialist side-constraints. The third, however, gives the trial a more thoroughly
non-consequentialist rationalea purpose to which it is internally rather than merely
contingently related: the defendants role in his trialhis participation; his right to be
heardis explained neither in instrumental terms as an efcient means toward some further
end, not by reference to independent side-constraints on our pursuit of that end, but as
being integral to the proper purpose of the trial.48
Of course, given his particular conception of punishment, it is the third type of
view that Duff personally advances and continues to develop in his later collabora-
tive work.
What Duff argues is that the criminal trial, like the hard treatment that is often
its end product, is a communicative enterpriseit is the process by which the
offender is called to answer by the political community against which he has
allegedly transgressed. It is part of the process of punishment and therefore justied
and shaped by the same overriding concerns, rather than by higher-order concerns
that are somehow separate from this. Duff accordingly ties his conception of the
criminal trial to his conception of the justication for punishment in a way that few
if any other theorists have attempted to do. For Duff, the criminal trial is a public
moral dialogue like that envisaged by Habermas, not something the state does to
the accused, but something that is designed for the state, the accused, and his
alleged victims to do together.49 As such, all parties must play a partthe
defendants participation is intrinsic to the experience not merely instrumental to
it, as is the participation of those who would stand witness against him. From this
idea, in turn, Duff derives the presumption of innocence, the defendants right to
silence and his right to speak, his right to know the charges and evidence against
him, his right to confront the witnesses against him, and other seemingly self-
contained principles as well.
The main competitor for Duff s communicative theory is the consequentialist
idea that the sole purpose of the criminal trial is to reveal the underlying truth. This
truth-gathering function is then subject to independent limits, or not, depending
on whether the conception of the criminal trial being advanced is purely conse-
quentialist or mixed and therefore subject to some non-consequentialist side-
constraints. Of course, Duff recognizes that bringing the relevant empirical facts
into the light is an important function of the criminal trial. But he maintains that
bringing out the relevant empirical facts is merely a means to a more important end
under his communicative conception, not an end in itself. There is thus no need to
impose independently generated side-constraints on the truth-gathering process.
Under the communicative theory, the theory itself explains why the revelation of
pure empirical truth must sometimes take a back seat.

48 49
Duff 1986: 1012. See, e.g., Duff and Marshall 2004, 2007.
Introduction 19

In further support of Duff s claim about the secondary importance of the

instrumentalist view of the trial as a method for uncovering the empirical truth,
consider this. Suppose there was a machine that could scan the brains of the
defendant and all available witnesses, record all their actual observations and
intentions, digest all the documents that are scanned into it, and produce an
historical empirical record of what happened that we believed to be accurate and
complete with an extremely high level of condence. Such a machine would
certainly be handy to have, and one can certainly see why some people might be
tempted to employ it. But it does not take long to realize that the use of such a
machine would raise some serious moral questions. For example, there are
overriding reasons why some evidence, though probative, is improper to consider.
What we are interested in is not merely the empirical truth, but the normative
truth, and the former is part of the latter but only part.50 We want to know not
only what happened, but whether what happened morally warrants punishment,
all-things-considered, and in order to ensure that we are in a position to make the
latter, normative judgement, we may sometimes have to impose limits on what
kinds of empirical evidence we may actually consider. Thus the pure consequen-
tialist instrumentalist view of the criminal trial must be rejected.
More importantly, our hypothetical also helps explain why even the side-con-
straint view of the criminal trial must be rejected. Even historically accurate
evidence will contain contradictions, and the conclusions one can draw from
such conicting evidence will depend on judgements about the weight to assign
to it. Determining what evidence is relevant will accordingly often require a
judgement call. The ability to make such judgements could not possibly be
programmed into a machine, for these judgements are simply too particularistic
to be reduced to the kind of universally applicable algorithms a machine could
employ. Thus, even if we could limit the evidence that the machine sees, we could
not program the machine to respond to the evidence as a person can. There is
something not just helpful but also necessary in the participation of other people in
the process, for determining the truth always requires judgement, and this is
something that cannot be done by machine. The invention of such a machine
would therefore not render the criminal trial obsolete, even if it could be pro-
grammed with the relevant side-constraints.
Finally, even after we recognize that truth-gathering has a normative as well as a
descriptive aspect, we still have reason to doubt that truth-gathering could be the
primary goal of the criminal trial. While the criminal trial along with the right of
confrontation and cross-examination that it typically contains is often described as
the greatest legal engine ever invented for the discovery of truth,51 it is not as good
at this as is commonly believed. The problem is that there is a fallacy at the heart of
this common belief, although Duff only hints at this. The theory is that one side
brings out all the facts that favour its version of events; the other brings out all the
facts that favour its version. The very adversarial structure of the criminal trial

See Duff et al. 2007: 57125. 51
See Wigmore 1940, vol. 5 } 1367 at 29.
20 Introduction
thereby supposedly ensures that the trier of fact is presented with all the facts.52 But
this assumes that there are only two kinds of factsfacts that are good for one side,
and facts that are good for the other. In reality there are always at least some facts,
and sometimes a great many facts, that lie in between. These are the grey facts
facts that could cut either way depending on what point of view the trier of fact
happens to take. Exactly how the trier of fact will see these facts is accordingly
difcult to predict. As a consequence, it is at least possible and perhaps even likely
that there will be a silent conspiracy among prosecution and defence never to
mention these facts or to introduce them into evidence, for both sides will usually
want to err on the side of caution. Why bring out something that might hurt you,
after all? And when a great many facts fall into this category, the trial becomes not a
place where all the facts are brought into the light, but a battle between extremes
where the only facts admitted are those that lie clearly on one side or the other.
The grey factsthe kinds of facts that really make up our daily lives, the kinds of
facts that often make history so ambiguous and difcult to understandare never
mentioned. As an engine for the discovery of empirical truth, the adversarial trials
tank is often just half-full. The adversary system cannot reveal the whole truth,
but only a choice between competing extremes, a highly-edited picture of the
truth that has its contrast turned way up so we can easily distinguish one version
from the other.
Of course, there are problems with the inquisitorial system too. Here we have
some of the same problems as above, for some ltering must still be done in order to
reduce history into understandable bits. There is always a delicate balancing that
must go on between taking into account all the factors that have any causal
inuence on the events under consideration and abstracting out from some of
these inuences so that we can begin to see patterns and connections and come to a
meaningful understanding of what happened. And while we do not have the
problem of the deliberate suppression of grey facts, we do have a different problem;
there are no structural guarantees that the person in charge of marshalling the
relevant facts will not be biased and therefore shade his ndings in favour of one
party or the other. So whatever form the criminal trial takes, its effectiveness as a
truth-gathering mechanism is subject to some built-in limits.
But the point for Duff is not just that there are problems with any procedure for
truth-gathering, mechanical or otherwise, and that we must therefore reject this as
an unattainable goal and embrace some other second-best guiding principle for
the design of the criminal trial. The point is that, even if these technical difculties
could be overcome, we should not see the criminal trial as a mere mechanical
process designed to resolve certain contested factual claims as best it can, for this is
too modest and limited a goal. Getting it right is not all we must dowe must also
get it right in the right way, which consists in producing a result that the entire
political community including the alleged offender can embrace for reasons that

For a discussion of the origins of this argument for the adversary criminal trial, see Langbein
Introduction 21

have to do with the inherent nature of the procedure and not just its outcome.53 To
do this, in turn, we need to see the criminal trial as an organic communicative
process where the alleged offender can be called to answer the charges against him.
As a result of the dialogue that necessarily ensues, the aggrieved political commu-
nity can then gradually come to a public normative judgement about the respective
moral rights and duties of the parties involved, a judgement that is not only fair but
also can be seen as fair (or at least as fair as it can be). Such a judgement both
reafrms and develops the underlying moral principles that are at stake.54 That, for
Duff and for his partners in The Trial on Trial project as well, is the morally more
ambitious goal our design of the criminal trial should primarily embrace.
One friendly criticism that might be made of Duff s work in this area is that he
may be thinking too small. In other words, instead of looking for a unied concept
of the criminal trial, we should perhaps be looking for a unied concept of the trial,
full stop. A number of theorists have argued that the traditional separation between
criminal and civil law is largely articial, and it is notoriously difcult to give a clear
and plausible account of the distinction between civil and criminal wrongs,
although Duff has perhaps come closest to doing this.55 The differences between
a civil and a criminal trial, except perhaps for the nature of the remedies that
typically ow from each, seem to not be differences in kind but differences in
degree. Why should the fact that punishment typically ows from one kind of trial
and compensation from the other suggest that different conceptions of the trial are
necessarily in play? Could not the remedies available in civil trials also be derived
from a communicative conception of the trial? Do we really need a whole other
concept of the civil trial to explain this? But these are questions for another day.
Duff has launched us down a very fruitful road of philosophical inquiry, and
nding the road is necessarily the rst and most important step toward ultimately
nding where it leads.

8. Closing Remarks
Finally, it is incumbent on us to say a few things about Duff as a colleague and
friend. Someone once said that what you need to get ahead in academia these
days is a really good enemy, for only a really good enemy will take the time to go
over your work with a ne-toothed comb and bring out every inconsistency,
ambiguity, and indeterminacy, errors that you can then correct as you strive to
make your views ever more developed and complete. What this volume shows is
that it is even better to have some really good friends, who regardless of their
agreement or disagreement with you are willing to offer that same kind of focused

Indeed, from early in his career Duff has emphasized that morality requires not only getting it
right, but getting it right for the right reasons. See, e.g., Duff 1980.
See Duff et al. 2004: 128; Duff et al. 2007: 127285; and Duff 2007a: 17593.
For an argument that what does or at least should determine which wrongs are criminal and
which are civil is the type and extent of punishment that must be made available to make the rights at
issue enforceable, see Reiff 2005.
22 Introduction
critique, to poke and prod your views so that you can make them less amenable to
attack, and who are even inspired to take your views forward into new areas
themselves. But most importantly, for all of us involved in editing this volume,
each of whom has from time to time needed constructive criticism to take his
own work forward, we want to note the ease with which we each have always
been able to turn to Antony Duff, who despite his ever more demanding
professional commitments has always been willing to give his time and attention
to the work of others with generosity and grace. Thus, our nal word to Antony is
simply this: Thanks.

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