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The origins of expressivism lie in sociology (e.g. Emile Durkheim) and communicative theories of criminal law (e.g. Joel Feinberg, Antony Duff). These ideas have been developed in contemporary criminal law doctrine (e.g. Günther Jakobs, Andrew von Hirsch, Tatjana Hörnle, Claus Roxin), transitional justice (e.g. Mark Osiel, Pablo de Greiff), and international criminal law. The chapter develops a contemporary theory of expressivism. It argues that expressivism is rooted in a communicative cycle between norms as messages, crimes as messages, and judicial responses. This triad provides an explanation for the functioning of expressivism. It can be divided into norm expression and diverse types of agent-related expression. Their application involves different tensions: empirics versus faith, power-related critiques, instrumentalism, and mediation of messages.

This chapter argues that criminal law theory has been too narrowly focused on the responsibility of the offender for his criminal acts, and seeks to show how other key players in the system — including legislatures, police, prosecutors, and courts — share responsibility for the system of criminal law and how it chooses to treat its subjects. The chapter is organized as follows. First, it identifies some of the distinctive inquiries and methods of a political theory of criminal law. It then turns to the concept of responsibility and offers a revisionist, or perhaps rehabilitated, account of criminal responsibility. On this account, the accused individual does not stand isolated as the responsible agent; instead, criminal responsibility is also a matter of the public and collective agency exercised throughout the processes of criminalization, prosecution, adjudication, and punishment. The concluding section connects the examination of responsibility for the criminal law to questions about responsibility for other forms of bureaucratic violence.

This chapter explores four rival perspectives or approaches to conceptualizing criminal procedure and evidence designated: doctrinal-conceptualist; epistemological; institutional; and normative. These four ideal-types are intended to represent core strands in contemporary common law scholarship, viewed from a British perspective. This chapter, in other words is largely an exercise in sympathetic reconstruction of existing theory and practice rather than a building from the ground up of conformity with an ideal theoretical blueprint. Any purported contrast between ‘procedure’ and ‘evidence’ is slippery at the best of times; and readers may need temporarily to suspend belief in their own jurisdiction's conceptual, disciplinary, and pedagogic taxonomies.

This introductory chapter presents a summary of the argument of the book; explains the method of immanent critique used to study the law; contrasts this method with that of both orthodox normative theory and normatively sceptical sociological theories of criminal justice policy; and summarizes and explains the presentation of the argument.

The central characteristic of responsibility as developed by Duff is the ‘triadic relational concept’ consisting of a relation between an agent A who is responsible for something X to somebody S and in virtue of being a member of a unit of responsibility, e.g., a neighbourhood or a state. This chapter rejects several justifications for Duff's theory of responsibility and justifies the triadic relational structure of responsibility in terms of self governance. Under this justification, individuals conduct their lives in different spheres. Each sphere is governed by a community that engages in an enterprise consisting of a thick set of norms and practices. It is important that it is primarily members of the community who ultimately determine the content of these norms and practices. By conforming to the dictates of the triadic relational structure one guards the rights of members (of the unit of responsibility) to govern themselves.

This chapter begins the task of looking at white-collar crime through the lens of criminal law theory. It discusses the place of retribution in criminal law theory and moral ambiguity in white-collar criminal law.

Chapter 6 summarizes the methodological upshot of the book’s argument for legal theory and for legal scholarship more generally, as well as confronting some of the normative questions raised by the interpretation offered in Chapter 5. The chapter develops the argument that the conceptual structure of criminal law must be contextualized within broad practices and functions of criminalization, with ‘the law in the books’ understood in relation to ‘law in action’. It examines, first, the implications of the book’s argument for projects of so-called ‘special jurisprudence’ which analyse the foundations of key legal concepts, before moving on to examine its implications for ‘general jurisprudence’—the project of theorizing law itself—and for the relationship between the analytic, explanatory, and normative tasks of legal scholarship.

The Introduction distinguishes justice and legitimacy as distinct metrics by which to evaluate the rules of the substantive criminal law. It also distinguishes anarchists, who believe no state can or does possess authority (understood as the power to impose moral obligations), and for whom justice is the only metric by which to evaluate the rules of the substantive criminal law, from statists, who believe democratic states can possess authority, and for whom legitimacy is another metric by which the rules of the substantive criminal law can be evaluated. The Introduction introduces the concepts of actus reus (guilty act) and mens rea (guilty mind) as limitations, embodied in immunity rights, against the exercise of the otherwise legitimate authority of a democratic state to define rules ascribing culpability when someone is charged with committing a crime. It concludes with a roadmap briefly describing the plan of the book.

PJA Feuerbach is still considered a founding father of modern criminal law science. His Textbook on penal law is a classic. One of his lasting contributions is the insistence on a strictly rational justification of criminal punishment. He proposed a deterrence-based theory that shifts the focus from the conviction of offenders and the execution of sanctions towards the statutory threat. Discussing the criticism of Feuerbach’s punishment theory, the chapter concludes that punishment cannot be justified by referring to just one notion such as deterrence. The chapter analyzes Feuerbach’s elaboration of the principle of nulla poena sine lege, distinguishing the prohibition of retroactive criminal laws and Feuerbach’s insistence on the existence of statutory laws. A third achievement of the Textbook is the introduction of a framework for criminalization. Feuerbach defines in a general way what kind of conduct can be called a crime: a crime consists in the violation of another person’s rights...

This introduction lays out the book’s animating idea: to contribute to the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and, at the same time, to present a snapshot of contemporary work on criminal law within that historical and comparative context. In addition, the introductory chaper provides an overview of the book’s content, not by giving chapter-by-chapter plot summaries, but by exploring the conceptions of “foundational texts in modern criminal law” running through the various contributions and, along the way, highlighting some of the themes that one might see emerging from the book as a whole.

This chapter introduces the idea of criminalization. It looks briefly at how it has emerged as a key focus of contemporary legal theory. It then argues that an understanding of criminalization necessarily requires both a prior understanding of the existence of the criminal law as a distinct area of law with a discrete area of application (or jurisdiction) and an understanding of ‘crime’ as the object to be regulated. Since this did not exist in any meaningful sense before the end of the eighteenth- or the beginning of the nineteenth-centuries, criminalization (and theories of criminalization) must be understood as a distinctly modern phenomenon, linked to the emergence of this understanding of criminal law. The question of criminalization—or how to make criminal laws—is thus necessarily connected to the making of the modern criminal law.

Chapter 1 introduces the main arguments of the book. First, responsibility plays two practical roles in modern criminal law: legitimation and coordination. Conceptions and elaborated doctrines setting out the conditions of responsibility serve to legitimate criminal law as a system of state power, this being a condition for criminal law’s power to coordinate social behaviour, a task that it accomplishes in part by specifying the sorts of information or knowledge that have to be proven in the trial process precedent to conviction. Second, three main aspects of its environment shape responsibility: ideas, interests, and institutions. Hence what is needed is an account premised on the co-evolution of these three spheres in the production of doctrines and practices of criminal responsibility-attribution over time. Third, the evolution of criminal responsibility must be understood historically, in the context of practices of criminalization and the prevailing social functions of the criminal process.

Chapter 5 offers an interpretation of how the interacting forces of ideas, interests, and institutions have co-evolved to produce distinctive—multiple, philosophically conflicting—conceptions of criminal responsibility and practices of responsibility-attribution. It traces a broad trajectory from the eighteenth-century era of character responsibility, through a transitional period during which ideas of capacity-based responsibility coalesced and found political support and institutional form, with outcome responsibility also expanding to fill regulatory roles, ultimately producing a relatively stable era in which responsibility-attribution followed the dual tracks of capacity and outcome. Finally there has been a resurgence of character- and (re)emergence of risk-based responsibility-attribution in late twentieth and early twentieth-firstcentury England. It considers the ways in which character-based responsibility-attribution retained a role in legal practice even during the middle era, and presents a hypothesis about the political-economic forces which drive patterns of responsibility-attribution over time.

Chapter 4 considers the main institutions which shape, either directly or indirectly, the development of ideas of criminal responsibility and its attribution: criminal justice institutions such as the pre-trial process, the trial, the police, and the legal profession; broader social institutions such as the professions and professional bureaucracies; and the overarching political system. It then illustrates the ways in which the changing shape of these institutions over time has affected the development of ideas and practices of responsibility-attribution by presenting case studies examining the institutional logic of character responsibility in the mid-eighteenth-century criminal process; and the professionalization and systematization of criminal justice in the nineteenth century amid the emergence of modern democratic governance.

The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely for that reason. This chapter tries to capture the significance of the Model Penal Code—or, to call it by its full name, the Model Penal and Correctional Code—by explaining why it is not foundational. Along the way, the chapter hopes to shed some light on the history and complexion of American penality and, with any luck, even on modern penality in general, on the Model Penal Code’s, and therefore also Wechsler’s, place in modern criminal law.

One of the most important and distinctive themes of Lacey’s recent work has been the analysis of penal practices from the perspective of political economy. However, it is arguably the case that ‘political economy’ is primarily viewed as a dimension of the context in which the criminal law develops rather than as a method of legal analysis. In this chapter I explore the meaning and critical potential of the concept of political economy—how it is used by Lacey, the different traditions that she draws on—and what the perspective and theory of political economy contributes to our understanding of criminal law. I seek to deepen the relevance of political economy to the analysis of criminal responsibility by exploring how the development of the modern conception of English criminal law in the early nineteenth century was itself shaped by contemporary understandings of political economy. Most historical work on the development of the modern criminal law has focused on the impact of utilitarianism to show how changes in penal laws and institutions were linked to new efforts to shape individual conduct in society. However, equally important to the intellectual and political culture of the early nineteenth century were understandings of the new ‘science’ of political economy. This chapter explores the ways in which theories of political economy shaped the modern criminal law in this period and thereby to open up new possibilities for exploring connections between criminal law, criminal responsibility, and political economy—and thus for critical criminal law theory.

This chapter deals with objective versus subjective justification, with particular emphasis on the importance of function and form in developing a system of criminal law theory. It first examines the distinctions on which the criminal law ought to rely, based on the assumption that the criminal justice system cares about whether the actor's conduct causes a harm or evil, about the blameworthiness of the actor, and about legality virtues such as giving fair notice. It also discusses the difference between cases of objective justification and cases of subjective, mistaken justification. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as “unknowing justification” and the necessity defense.

Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; still others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the prima facie case of crime, it is not an excusing or mitigating condition per se, and it does not contribute relevant evidence to existing excusing conditions, such as legal insanity. This chapter evaluates the criminal law’s model of responsibility using scientific and clinical evidence and dominant criminal law theories. It concludes that although the law’s approach is generally justifiable, current doctrine and practice are probably too unforgiving and harsh. Recommendations for reform conclude the chapter.