Philosophical Foundations of Criminal Law

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world. Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years.

R.A. Duff is a professor at the University of Minnesota Law School. He was educated at Oxford, and taught for forty years in the Philosophy Department at the University of Stirling.

Stuart P. Green is a Professor of Law at Rutgers Law School-Newark. He was educated at Yale Law School.

1. Introduction: Searching for Foundations, R.A. Duff & Stuart Green
2. Criminal Law as Public Law, Malcolm Thorburn
3. Just Prevention: Preventive Rationales and the Limits of the Criminal Law, Andrew Ashworth and Lucia Zedner
4. Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law, Markus Dubber
5. Republicanism and the Foundations of Criminal Law, Richard Dagger
6. Political Theory and the Criminal Law, Matt Matravers
7. Responsibility for the Criminal Law, Alice Ristroph
8. To Whom Must We Answer? Responsibility and the Criminal Law, R.A. Duff
9. The Resurgence of Character: Responsibility in the Context of Criminalization, Nicola Lacey
10. The 'De Minimis' Defence to Criminal Liability, Douglas Husak
11. Beyond the Special Part, Larry Alexander and Kim Ferzan
12. Intention as a Marker of Moral Culpability and Legal Punishability, Michael Moore
13. Understanding the topography of moral and criminal law norms, Ken Simons
14. Wrongdoing and Motivation, Victor Tadros
15. The Ontological Problem Of 'Risk' and 'Endangerment' in Criminal Law, Peter Westen
16. The Substance-Procedure Relationship in Criminal Law, Donald Dripps
17. What Self-Defence and Punishment Share, John Gardner and Francois Tanguay-Renaud
18. Criminal Liability and 'Smart' Environments, Mireille Hildebrandt
19. Groundwork for a Jurisprudence of Criminal Procedure, Paul Roberts
20. Just Desserts in Unjust Societies: A Case-specific Approach, Stuart Green
21. Two Kinds of Retributivism, Mitchell Berman
22. Criminal Law Theory Goes to War, Adil Haque
23. Piercing Sovereignty: A Rationale for International Jurisdiction Over Crimes that Do Not Cross International Borders, Christopher Wellman