The Concept of Criminal Law
Document Type
Article
Publication Date
2020
Abstract
What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique.
This Essay argues that Antony Duff’s The Realm of Criminal Law offers an answer—and that the answer is correct. Duff rightly diagnoses criminal law as unique by virtue of the fact that it censures particular acts in the polity’s name. It is a mechanism of collective condemnation. The Essay advocates recognition of this concept of criminal law and draws out implications for both criminal law theory and criminal law reform.
Keywords
Criminal law reform, legal theory, law & society, race, criminalization, collective condemnation, enforcement, punishment, abolitionism, Antony Duff, The Realm of Criminal Law
Publication Title
Criminal Law & Philosophy
Repository Citation
Mayson, Sandra G., "The Concept of Criminal Law" (2020). All Faculty Scholarship. 2428.
https://doi.org/10.1007/s11572-020-09530-z
Publication Citation
14 Crim. L & Phil. 447 (2020)