The Internal Structure of the Criminal Law
Once we have articulated an account of the proper aims and limits of the criminal law, we can tackle various issues about its internal structure—about the general principles and conditions of criminal liability (the so-called ‘general part’ of the criminal law), and about its definitions of specific offences (the ‘special part’). I cannot pursue these issues here, but our approach to them must clearly be based on our account of the proper purposes of the criminal law. Thus if the criminal law should aim to define, to condemn, and to call perpetrators to public account for wrongs whose character and implications are such that they properly count as ‘public’, its definitions of crimes and its principles of liability must be apt to identify such wrongs and the conditions under which agents can be justly condemned for them. In discussing such issues as whether the law should contain offences of ‘strict liability’, which can be committed by those who are not even negligent as to the harm they cause or risk; or what kind of ‘fault elements’ should be required for criminal liability, either in general or for particular crimes; or whether criminal liability should depend solely on the ‘subjective’ character of an action (on what the agent intended to do or believed herself to be doing), or also on its ‘objective’ character (its actual connection with and impact on the world); or whether and how the law should distinguish offences from defences, either substantively or procedurally; or what kinds of excuse or justification the law should recognise, and how they should be defined: we must first ask which doctrines and principles would capture the relevant kinds of wrongdoing and identify the culpable agents of such wrongs. This can only be the first stage of the discussion, since we will need to go on to ask whether those doctrines and principles can satisfy the wide range of other normative and practical constraints that must bear on a system of criminal law and justice, or how they could be adapted so as to satisfy those constraints: but it is where we must start. (For introductions to these issues see Fletcher 1978; Robinson 1997; Tadros 2005; Ashworth 2006; Dressler 2006; Simester & Sullivan 2007; Duff 2007; Gardner 2007.)
Theorists of criminal law must also attend, however, more seriously than they have often attended, to the criminal process that leads from (alleged) crime to punishment, and in particular to the criminal trial. It is through the criminal trial that criminal responsibility and liability are formally assigned, and the norms and doctrines of the substantive criminal law are articulated and applied. We therefore need an account of the proper aims and values of the criminal trial, and of the larger criminal process of which it is part—an account that can then underpin a more adequately grounded critique of our existing criminal processes. Should we, for instance, see the trial as an attempt to establish the truth (but what truth?), albeit an attempt that is constrained by a range of independent principles and rules that aim to protect us against the potentially oppressive and intrusive power of the state? Or should we see it as a process through which alleged wrongdoers are called to answer the charges that thay face and to answer for their crimes if their guilt is proved? What kinds of criminal process are appropriate to a liberal democracy that aims to treat all its members as responsible citizens? (See generally Burns 1999; Ashworth & Redmayne 2005; Duff et al 2007.)
