Academic

Leader-Elliott on Duff on Criminal Law

By Lawrence Solum

Ian D. Leader-Elliott (University of Adelaid) has posted A Critical Reading of R. A. Duff, Answering for Crime (Adelaide Law Review, Forthcoming) on SSRN. Here is the abstract:

'Answering for Crime' is an essay in rational reconstruction of the substantive criminal law. It takes the presumption of innocence as the central guiding principle for the reconstructive project. The proposed reconstruction is based on principles drawn from the law of offences against the person, in particular, rape and murder. Professor Duff opposes tendencies to unprincipled legislative pragmatism with a normative theory that would require each criminal offence to proscribe an identifiable public wrong, before a citizen could be required to answer to a court for the offence. The normative theory turns on the distinction between the citizen?s obligation to a court, when the prosecution must make out its case for conviction, by establishing the commission of a public wrong, and the citizen?s obligation to answer for an offence, by way of justification or excuse, once the public wrong has been established. Exceptions would be possible, but they would be infrequent and they would require justification consistent with the normative theory. This review questions the normative significance of the divide between offence and defence and questions as well the adequacy of the foundations for the reconstruction. The criminal law is more varied and various in its sources, structure and principles of development than 'Answering for Crime' allows.

Full post as published by Legal Theory Blog on September 09, 2009 (boomark / email).