Criminal law and the constitution of civil order

2020 ◽  
Vol 70 (supplement 1) ◽  
pp. 4-26
Author(s):  
RA Duff
Keyword(s):  
Criminal Law ◽  
Civil Order

scholarly journals Civil order, markets, and the intelligibility of the criminal law

2020 ◽  
Vol 70 (supplement 1) ◽  
pp. 123-140
Author(s):  
Lindsay Farmer
Keyword(s):  
Criminal Law ◽  
Civil Order

scholarly journals Approaching or Re-thinking the Realm of Criminal Law?

2019 ◽  
Vol 14 (3) ◽  
pp. 307-318
Author(s):  
Nicola Lacey
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
The Political ◽  
Moral Foundations ◽  
The Past ◽  
Political Morality ◽  
To Come ◽  
Civil Order ◽  
Antony Duff

Abstract In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes (Duff et al. in The boundaries of the criminal law, 2010; The structures of the criminal law, 2011; The constitution of the criminal law, 2013; Criminalization: the political morality of the criminal law, 2014) and two fine monographs by Farmer (Making the modern criminal law: criminalization and civil order, 2016) and Tadros (Wrongs and crimes, 2016; see also Tadros in The ends of harm: the moral foundations of criminal law, 2011). It will shape the field for decades to come; and it has decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility (cf. Lacey in Frontiers of criminality, 1995).

Human Rights, Labour Rights, and Criminal Wrongs

2020 ◽  
pp. 210-228
Author(s):  
Virginia Mantouvalou
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Real World ◽  
Fundamental Rights ◽  
European Convention ◽  
Structural Determinants ◽  
European Court ◽  
Normative Significance ◽  
Private Actors ◽  
Civil Order

This chapter assesses the contribution of the criminal law in protecting the fundamental human rights of workers. Fundamental human rights identify the basic moral entitlements of workers. These entitlements have a special normative significance in the polity. Accordingly, serious violations of those entitlements by powerful private actors would seem to count as public wrongs against the polity’s ‘civil order’, as constituted by its most fundamental rights. The chapter discusses the position of criminal law under the European Convention of Human Rights (ECHR), and the interpretation of the state’s positive obligation to protect as encompassing a positive obligation to criminalize certain public wrongs against fundamental entitlements. This chapter also emphasizes how the European Court of Human Rights has developed an approach to criminalization that is sensitive to its effects in the real world. It is not sufficient to have criminal laws on the statute books. Those criminal laws must be investigated and enforced effectively, with adequate support and protection for victims, and the state also has a duty to dismantle the structural determinants of vulnerability such as those constituted by its own visa regimes.

A Liberal Republic and its Criminal Law

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Political Thought ◽  
Criminal Punishment ◽  
Public Account ◽  
Civil Order

This chapter puts some flesh on Chapter 4’s formal account of civil order, by sketching the civil order of a liberal republic, drawing on the republican tradition of political thought. We can then see the role that criminal law can play in such a polity: as an appropriate way of marking and responding to public wrongs, it helps to sustain, and constitute, the civil order. Its central role is to provide formal declarations of the central norms of that civil order, defining what kinds of conduct citizens are entitled to expect from each other (and from the polity); and to provide the process through which those accused of violating these norms are called to public account. On this account, criminal punishment is not the primary purpose of criminal law: but given the salience of punishment in our criminal law, something must be said about its role in a liberal republic.

Civil Order and the Public Realm

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Public Law ◽  
Civic Life ◽  
Shared Understanding ◽  
Public Realm ◽  
The Public ◽  
Civil Order ◽  
Public Wrong

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is central to this public realm: it is structured by the values through which a polity constitutes itself; it can be partly defined by a written constitution, but is also implicit in the polity’s institutions and practices. A conception of civil order depends on a normative distinction between the ‘public’ and the ‘private’: we must attend to different public–private distinctions. We must also attend to the preconditions of civil order: what kinds of shared understanding are necessary; what can be said to dissenters? Given a conception of a polity’s civil order, and its public realm, we can understand a ‘public wrong’ as a wrong that falls within that public realm, and violates that civil order.

Doing the Dirty Job

2020 ◽  
pp. 327-342
Author(s):  
Ana Aliverti
Keyword(s):  
Criminal Law ◽  
Social Boundaries ◽  
Sociological Perspective ◽  
Social Functions ◽  
Legal Norms ◽  
Market Governance ◽  
Migration Control ◽  
Recent Phase ◽  
Civil Order ◽  
Migration Regimes

This chapter offers a more historical and sociological perspective on the inclusionary and exclusionary effects of criminal law, determining who is inside and who is outside the polity’s ‘civil order’. In so doing, the chapter draws upon Lindsay Farmer’s work which tracks shifts in the structure and content of criminal law with shifting notions of ‘civil order’. The resulting analysis illuminates the shifting social functions of criminalization during different historical phases, especially as it relates to migration control and labour market governance. Legal norms have both reflected and constructed political and social boundaries, often based around racialized notions of ‘good’ and ‘bad’ migrants. The most recent phase of criminal law intervention conjoins highly deregulated labour markets and highly juridified migration regimes. This has been linked to the rise of populism and more authoritarian and nationalistic forms of statecraft. Nevertheless, this chapter asserts that we should avoid determinism in reading these historical shifts.

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