The Normative Structure of Criminal Law: Moral or Political?

Abstract

Antony Duff, Lindsay Farmer, Sandra Marshall, Massimo Renzo, and Victor Tadros have recently edited an excellent and important series of collections concerning the problem of criminalization, that is, the principles that should govern the public policy decision to use criminal law and punishment to regulate behaviour. The Structures of Criminal Law, the second of three volumes, is meant to address the following issue: ‘‘once it has been decided to use the criminal law, are there any particular constraints that accompany this?’’ Are there any ‘‘structural features of criminal law which contribute to or limit our understanding of what it is proper to criminalize’’? (p. 2) The editors distinguish three relevant senses of ‘‘structure’’: those relating to the structure of criminal law itself (p. 5), those relating to the place of criminal law in the legal system as a whole (p. 7), and those relating to other ‘‘social and political structures’’ (p. 8). Where necessary, I will refer to these three structural issues as doctrinal, legal, and social, respectively. As the editors recognize, the very terms of these questions are contestable—their contributors do not agree among themselves as to what the structure of criminal law is or as to whether its structure has any constraining effect on the use of criminal law as a policy instrument. In this review, I try to locate each of the papers in relation to a large structural issue that engages particularly with the legal and social structures of criminal law: I will call it the question of normative structure. What is the relationship between the normativity of criminal law and the normativity of ordinary morality? Judgments of criminal