In Defence of Offences and Defences

Abstract

My title is a more than a little self-parodic. The more my writings on criminal law retreat into the past, the more aware I become of their deficiencies. I should have foreseen this. It is not just a matter of critical distance, or of exposure to new waves of objections. It is also a matter of irreparability. As I have pointed out elsewhere, 1 reasons to which we do not conform stay with us, waiting for whatever conformity we can still belatedly muster. As time passes and circumstances change, our ability to do anything by way of conformity with some reasons may be lost. Then we only have our regrets. Sadly that is the stage I have reached with some passages in Offences and Defences. 2 I am no longer in a position to account for some of the strange things I said, never mind to mitigate their strangeness. By attempting to defend what I wrote I will only dig myself into a deeper hole. In such cases I can only concede the case for the prosecution. Fortunately I have, in Miriam Gur-Arye, Leora Dahan-Katz, and Daniel Statman, merciful prosecutors who make it easier for me to confront the errors of my misspent youth. They soften many of their searching criticisms of my work with superhuman efforts to find redeeming merit in the positions they criticise. They give patient attention to, and seek sensible explanations for, even my most far-fetched ideas. I am honoured by the time and energy that each has invested in making sense of Offences and Defences, and by the opportunity provided to me by the editors of the Jerusalem Review of Legal Studies to reflect on and reply to their comments in print. In all three contributions I find much to agree with, and much less to disagree with. But it falls to me, nevertheless, to say some final words in my defence, or at least mitigation, before the jury goes out (that means you, dear reader). As my work is now heading in a new