Taking as its starting point Miri Gur-Arye’s critical discussion of a legal duty to report crime, this paper sketches an idealising conception of a democratic republic whose citizens could be expected to recognise a civic responsibility to report crime, in order to assist the enterprise of a criminal law that is their common law. After explaining why they should recognise such a responsibility, what its scope should be, and how it should be exercised, and noting that that civic responsibility must include a responsibility to report one’s own crimes; it discusses whether that civic responsibility could ground at least a limited legal duty to report certain types of crime. It then turns to the question of whether a civic responsibility to assist the criminal law’s enterprise of bringing wrongdoers to account could include a responsibility to arrest suspected or known offenders if the police cannot or will not do so—a responsibility to make a citizen’s arrest, and the legal power to discharge that responsibility: how far should citizens feel entitled, or duty-bound, thus to ‘take the law into their own hands’?

Jones is on trial for a violent assault on his daughter. Proof of the following facts is available; each increases the statistical probability that Jones committed this assault: Jones belongs to an ethnic group among whom this kind of crime (of violence, of violence against family members, of violence against daughters) is significantly more prevalent than it is among the general population. Also, Jones has prior convictions for criminal offences; or for crimes of violence; or for assaults on his daughter. Should the prosecution be allowed to introduce such facts as evidence of Jones's propensity to commit the crime of which he is now accused? We engage with recent arguments in defence of the (in principle) admissibility of such evidence offered by Federico Picinali and by Mike Redmayne, and we suggest that the most persuasive arguments against its admissibility are grounded in political rather than in moral philosophy.

The idea that crimes can usefully be understood as ‘public wrongs’, and that this can generate a plausible principle of criminalisation, has found some support in recent years; it has also been subjected to some sharp criticism. This paper aims to sketch the most plausible version of that idea, and to show how, once properly explained, it is not vulnerable to those criticisms. After a brief defence of the negative principle, that we may not criminalise conduct that does not constitute a public wrong, it explains the positive principle, that we have reason to criminalise conduct if it constitutes a public wrong, by drawing an analogy between criminal law and codes of professional ethics, and by appealing to the idea of civil order, as the normative structure of a polity—a structure that criminal law helps both to constitute and to sustain. Four objections are then met: that this account implies an unacceptable relativism; that it distorts the reasons that bear on criminalisation; that it cannot make room for those who do not identify themselves with the polity in which they live; and that it implies an unrealistically demanding conception of what is required for a polity to exist.

In chapter 3 of this book1 Vincent Chiao sets out to develop the main features of the “fully political standard of justification” which ground his justification of criminal law—or, more specifically, punishment.2 So, the more substantive account of content of “the political” together with its implications for the criminal law, understood as itself a political institution, are crucial to his main argument. For this reason, in what follows I concentrate almost exclusively on these ideas and say almost nothing about punishment. If, given the undoubted importance of the arguments about punishment, this seems perverse then my excuse has to be that since I am sympathetic to the political theory account which Chiao invokes, it is important to be clear about where, at the general level, the pinch points might come, before we get to the institutionalized form of punishment in particular. My aim in what follows is, then, not primarily a critical assessment of Chiao’s arguments, but more of an exploration of the two central political theory ideas which form the basis for his argument in this and subsequent chapters.

This chapter explores the role that criminal law might play in combating “hatred,” in particular whether and why we might appropriately criminalize “hatred.” After sketching some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating “hatred”), we explain why a certain kind of “hatred” should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. We then discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred, and say a little about the difficulties involved in turning “in principle” into “in practice,” particularly those concerning offense definitions.

We need to distinguish, as theorists too often fail to distinguish, two distinct harm principles. One, the Harmful Conduct Principle, concerns the criminalisation of conduct that is itself harmful or dangerous: that principle cannot explain how we can have good reason to create offences of so-called ‘abstract endangerment’, of which many road traffic offences are good examples. We can explain such offences as those by appeal to a different harm principle, the Harm Prevention Principle. That principle, however, is a principle not of criminalisation, but of regulation: it gives us reason to regulate conduct if doing so will efficiently prevent harm, without imposing undue burdens on those whose conduct is regulated. We then have reason to criminalise violations of such regulations, not because such violations are always harmful, but if and because they are wrongful. This distinction, between two kinds of principle and two possible routes towards criminalisation, can be drawn whatever goals or values we posit as our starting points.

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

‘The general theory of law is the study of the essential properties of law … . The study of jurisprudence is never-ending, for the list of essential properties of law is indefinite. There is neither point nor possibility of listening to them all. We explore them not just because they are true but because they answer to a current concern’ (97–98). One might add further that if jurisprudence is to be not just ‘never-ending’ but endlessly interesting then that is because it consists of so much more than simply the identification of, a listing of, the essential properties of law. Certainly, we must be interested in what those properties amount to, but further than that we need to understand how they interweave to form the institution of law. This book is a contribution to that exploration. So, whilst Joseph Raz’s work has always ranged across legal, moral and political philosophy, the discussions of the moral and political in this book have their point insofar as they illuminate the nature of law. Legal philosophy, as characterized by Raz, aspires to be something more than endlessly interesting – it is ‘practical, that is it is part of our attempt to fix our own orientation in the world, to find our bearing by identifying who we are and what is right and wrong, good and bad, important or trivial in our surroundings’ (111). Such practical understanding comes, however, not through the development of an overarching, grand theory which fixes law as if it were unchanging, but in a way that presents more of a patchwork than a seamless web. Such a theory, general and universal as it claims to be, will, however, need to recognize not only that the concepts of law are subject to change, but that law is, as Raz himself insists, parochial – that ‘the concept of law like all concepts is parochial in being the product of a specific culture’ (96). The balancing of these seemingly conflicting aspects of such theorizing lies at the heart of this volume and is a significant part of what makes it philosophically both challenging and interesting.