This chapter argues for an institutional approach to understanding criminal law. In the first part there is a discussion of different theories of criminalization, which develops the claim that there has been a failure on the part of such theories to attend to the purpose or function of the criminal law. The second sets out an understanding of criminal law as an institution, as a framework that can combine a normative perspective on issues of criminalization with a richer understanding of the purpose and function of the criminal law. The third then looks at the question of how this account, which gives more weight to the purpose and function of the modern criminal law, might contribute to normative theories of criminalization.

R.A. Duff and John Gardner have recently suggested that responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the agent in order to justify her conduct. However, this idea is formulated in very different ways by the two. Gardner’s account is “non-relational” in that it assumes that all moral reasons ultimately apply to every moral agent and that “everyone’s conformity to every reason is everyone’s business”. This means that, although there are obvious pragmatic reasons to limit the practice of calling each other to account, in principle we are answerable to everyone for everything. The model defended by Duff, on the other hand, is relational in that it ties the right to call someone to account to the existence of relevant normative relationships between members of specific groups. In particular, Duff ties criminal responsibility to membership in the political community: being criminally responsible is being answerable to our fellow citizens for those wrongs that violate the fundamental values of the political community. While espousing the relational model defended by Duff, I suggest that there is a class of wrongs, namely violations of basic human rights, for which we are answerable not only to our fellow citizens, but also to all human beings. This is because while we can account for the wrongness of crimes such as theft or tax evasion simply by appealing to Duff’s thought that these crimes violate the fundamental values of the political community, the wrongness of crimes such as murder or rape cannot be reduced to that. We are certainly answerable for these crimes to our fellow citizens because to the extent that our polity declares them as public wrongs, in perpetrating them we fail to treat the victim with the respect owed to her as a fellow citizen. But we are also answerable for them to the whole of humanity because in committing them we also fail to treat the victim with the respect owed to her as a fellow human being.

1. Introduction: The Structures of the Criminal Law 2. The Standard of the Reasonable Person in the Criminal Law 3. Resultant Luck and Criminal Liability 4. Criminalizing SM: Disavowing the Erotic, Instantiating Violence 5. Constitutionalism and the Limits of the Criminal Law 6. International Crime: in Context and in Contrast 7. Legal Form and Moral Judgment: Euthanasia and Assisted Suicide 8. Abnormal Law: Teratology as a Logic of Criminalization 9. Criminalization Tensions: Empirical Desert, Changing Norms, and Rape Reform 10. Preparation Offences, Security Interests, Political Freedom

Criminal Responsibility and the Proof of Guilt Lindsay Farmer University of Glasgow, UK L.Farmer@law.gla.ac.uk

‘‘The trial is central to the institutional framework of criminal justice.’’ With this very first sentence of the first volume of The Trial on Trial, the editors emphasize the importance of their work and reveal the slight common law predominance of the project. In 2003 this project brought experts from accusatorial and inquisitorial jurisdictions together for a workshop addressing the theme ‘‘Truth and Due Process in Criminal Trial.’’ The topic of the relationship between truth and due process is a basic one, even from a continental law point of view. Yet, in civil law jurisdictions, substantive law is regarded as important for an institutional framework of criminal justice. The first printed outcome of this overall 3-year project covers many different aspects of criminal trials, including changing conceptions in national trials with regard to the law of evidence (namely in Scottish criminal trials, presented by Peter Duff), differences between the adversarial and inquisitorial models of criminal trial (‘‘Ritual, Fairness and Truth’’ by Jenny McEwan), specialities of the jury trial (‘‘Truth and Jury Nullification’’ by Matt Matravers), as well as the conceptual and factual interdependence of ‘‘The Criminal Trial and the Legitimation of Punishment’’ (Markus D. Dubber), and

The trial is central to the institutional framework of criminal justice. It provides the procedural link between crime and punishment, and is the forum in which both guilt and innocence and sentence are determined. Its continuing significance is evidenced by the heated responses drawn by recent government proposals to reform rules of criminal procedure and evidence so as to alter the status of the trial within the criminal justice process and to limit the role of the jury. Yet for all of the attachment to trial by jury and to principles safeguarding the right to a fair trial there has been remarkably little theoretical reflection on the meaning of fairness in the trial and criminal procedure, the relationship between rules of evidence, procedure and substantive law, or the functions and normative foundations of the trial process. There is a need, in other words, to develop a normative understanding of the criminal trial.