The Constitution of the Criminal Law

The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The contributors then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order. A vital examination of one of the most important topics in modern criminal legal theory, this volume raises new questions central to the study of the criminal law and offers new suggestions for addressing them.

R A Duff is a tenured professor at the University of Minnesota Law School, and professor emeritus in the Department of Philosophy, University of Stirling, Scotland.
His research focuses on the philosophy of criminal law, and he has published widely on penal theory, including; Philosophical Foundations of the Criminal Law (co-edited with Stuart Green, OUP 2011); Trials and Punishments (CUP, 1986), and Punishment, Communication, and Community (OUP, 2001); on the structure and principles of criminal liability with titles including Intention, Agency, and Criminal Liability (Blackwell, 1990), Criminal Attempts (OUP, 1996), and Answering for Crime (Hart, 2007); and on the criminal trial. His current projects include a book for the Criminalization project The Realm of the Criminal Law.

Lindsay Farmer works on the relationship between criminal law, legal theory and legal history, looking at how historical changes in the institutions and practices of the criminal law do and should shape normative accounts of criminal law. His book Criminal Law, Tradition and Legal Order (CUP, 1997) examines the development of Scots criminal law and its relation to national identity. He is currently working on a historical account of theories of criminalization. He has been professor of law at the University of Glasgow since 1999.

S.E. Marshall is a professor of philosophy at the University of Stirling. She co-edited the three-volume project The Trial on Trial with R.A. Duff, L. Farmer, and V. Tadros (Hart 2007) as well as the three titles of the Criminalization series. She serves on the Management Committee of the Philosophical Quarterly, and is President of the UK Association for Legal and Social Philosophy.

Massimo Renzo works primarily in legal theory and political philosophy. His main research interests are in the philosophical foundation of criminal law, international justice, state legitimacy, and political obligation. He is a lecturer at York Law School, and is on the editorial board of Criminal Law and Philosophy.

Victor Tadros works primarily on the philosophy of criminal law, criminal justice and punishment. He also has interests in general jurisprudence, and moral and political philosophy. He has two published books Criminal Responsibility (OUP, 2005) and The Ends of Harm (OUP, 2011), and he is also writing a book for the Criminalization series entitled Wrongs and Crimes. Prior to his appointment as professor of criminal law and legal theory at the University of Warwick, he held posts at the University of Aberdeen and the University of Edinburgh.

1. Introduction, R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros
2. What Constitutes Criminal Law?, Nicola Lacey
3. Harm, Vulnerability, and Citizenship: Constitutional Concerns in the Criminalization of Contemporary Sex Work, Vanessa Munro and Jane Scoular
4. The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law, Jonathan Rogers
5. Rights Forfeiture and Mala Prohibita, Kit Wellman
6. Criminals in Uniform, John Gardner
7. Puzzling about State Excuses as an Instance of Group Excuses, Francois Tanguay-Renaud
8. War Crimes and Wrongdoing in War, Jeff McMahan
9. Terrorism and the Criminal Law, Tony Coady
10. Responsibility and Answerability in the Criminal Law, Massimo Renzo