Law and Philosophy (2010) 29:101–119 DOI 10.1007/s10982-009-9053-2


Springer 2009

BOOK REVIEW Answering Duff: R.A. DuffÕs Answering for Crime General Remarks. Philosophers who specialize in normative inquiries but find the time to read only one book in criminal theory every few years should immediately place Answering for Crime at the very top of their pile. It is the best book to have appeared in the philosophy of criminal law in the last decade, and the finest book ever to have focused on the structure of criminal responsibility. Answering for Crime cements Antony DuffÕs reputation as one of the two most important philosophers of criminal law living in the Anglo-American world today. His only serious rival for this honor—Michael Moore—is actively debated in several places throughout the pages of Answering for Crime. Somewhat surprisingly, Duff now indicates his allegiance with the camp of legal moralism so closely associated with Moore. With these two distinguished legal philosophers on board, it is fair to say that legal moralism—all but given up for dead with the many refutations hurled against Lord Devlin—is undergoing a revival not unlike that of retributivism in the 1970s. Despite its resurgence generally, there are profound differences between the particular versions of legal moralism defended by Moore and Duff. Although readers can be expected to disagree about which philosopher emerges with the better arguments and more plausible conclusions, they no longer can afford to dismiss legal moralism itself. Answering for Crime is an exceedingly original work of legal philosophy written in a refreshingly accessible style. Despite the paragraph in his Acknowledgement in which Duff thanks his publishers for granting permission to borrow from many of his articles, the final product has been substantially reworked and cross-referenced. Legal philosophers who have followed much of DuffÕs earlier work should not presuppose that they can

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afford not to read this book because they are familiar with his views. These chapters are no mere collection of previously published essays. The pages of Answering for Crime are chocked full of novel distinctions—and with old distinctions drawn in new and helpful ways. Space does not allow me to explore a number of these contrasts or the ingenious uses to which they are put. For example, I will not discuss DuffÕs proposal to replace the familiar act requirement in criminal theory with an act presumption; his views about the several means by which mala prohibita offenses are consistent with a constraint that allows the state to punish only wrongdoing; his intriguing ideas about the various rationales for entrapment; his careful approach to the topic of responsibility and liability for omissions; his reasons for concluding that the harm principle cannot play a central role in a theory of criminalization; his identification of the various defects that are involved in different violations of the presumption of innocence; his treatment of the expository significance of the distinction between actus reus and mens rea; his attempts to resolve many of the perplexities that surround the concept of the reasonable person; his grounds for claiming that the criminal law should be more attentive to the difference between attacks and endangerments; and many other fascinating contributions. Most of these discussions stand nicely on their own; a theorist with a special interest in any of these central topics can locate the relevant discussion in the index and not be confused if he fails to read the preceding chapters. DuffÕs basic concern in Answering for Crime is the structure of criminal responsibility and liability, even though he is acutely aware that structure neither is nor ought to be separated neatly from substance. Although this somewhat narrow focus is entirely appropriate, some readers may occasionally find it to be frustrating. Duff typically is reluctant to endorse the normative arguments he so ably presents, explaining instead that his task is to identify the type of arguments that must be made in a given context, without ultimately assessing whether they are decisive. Consider, for example, his exhaustive treatment of strict liability. Duff is unmoved by the arguments of the many theorists

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who contend that strict liability always is objectionable in the criminal law. Several of his strategies to surmount the general problems with strict liability seem compelling. On many occasions, however, he stops short of indicating that his arguments are persuasive. Instead, he repeats that his ‘‘concern is with structure more than with substantive content; with the logic of responsibility and liability in the criminal law, and the kinds of argument that would be needed to justify the statutory provisions and doctrines [that he discusses], rather than in which of those arguments will ultimately prove to be sound’’ (p. 229). Readers who claim that Duff agrees or disagrees with them about a given substantive position do so at their peril, since he himself is officially noncommittal. Philosophers occasionally write books alleged to be about the law without paying much attention to the law about which they purport to philosophize. Whatever one thinks about this tendency generally, it clearly is not the approach taken in Answering for Crime. This book thoroughly examines existing legal doctrine, employing it as the starting point for normative assessment. The table of cases and legislation to which Duff refers spans nine whole pages. But even though his normative enterprise engages the law as it is, my own preference would have been to point out even more frequently the extent to which the criminal law fails to conform to the demands of his theories. If DuffÕs model is even roughly defensible, as I believe it to be, a huge amount of existing criminal practice becomes suspect. No good theory will come close to vindicating the bulk of our criminal law, and this conclusion should be emphasized repeatedly. As my review suggests, Answering for Crime deserves the broadest range of readers among moral, political and legal philosophers. I fear, however, that Hart Publishing Company may not have been the ideal choice for publication. Although Hart has many excellent titles in legal philosophy—including additional books co-authored or edited by Duff himself—it is somewhat less familiar to philosophers than to legal scholars. Regrettably, several of these titles are overlooked in the United States. As far as I could see, Hart did not send a representative to the most recent Eastern Division meeting of the American

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Philosophical Association. As a result, DuffÕs new book was not displayed at the largest annual philosophy convention. Hopefully, glowing reviews will encourage potential readers to pay attention to this outstanding work. But authors need all the publicity they can get, and a more visible publisher might have helped to place this book on the radar screen of philosophers more quickly. In the particular case of R.A. Duff, assistance from an aggressive publisher would be especially welcome. In my judgment, criminal theorists on each side of the Atlantic lack sufficient appreciation for their counterparts across the ocean. Cooperation and mutual respect seem more evident in other areas of philosophy. For reasons about which I can only speculate, Duff has never attracted the interest he clearly deserves in the United States. The same can be said of Andrew Ashworth. To add to the mystery, Michael Moore is similarly under-appreciated in the United Kingdom. Among contemporary philosophers of the criminal law, only John Gardner seems equally esteemed in both places. A wider audience for Answering for Crime would be likely to correct this unfortunate oversight. I have no doubt that this book will be widely read in Great Britain, and I can only hope that it will eventually be carefully studied in the United States as well. Although Duff provides what might be called a comprehensive vision of the structure of criminal responsibility and liability, he resists and continually cautions against the grand theorizing so favored in philosophical inquiry. He does not endeavor to find a ‘‘master principle’’ through which all of criminal law can be understood or unified. In expressing his skepticism about the inflated claims frequently made on behalf of the harm principle, for example, Duff avoids the mistake of supposing that some equally simple formula (involving, for example, ‘‘dominion’’ or ‘‘sovereignty’’) can play a comparable role. Indeed, the overall philosophy of criminal law defended by Duff throughout the pages of Answering for Crime eludes simple categorization (since the label ‘‘republican liberal communitarian qualified legal moralist’’ is neither perspicuous nor elegant).

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Responsibility as Answerability. Answering for Crime is constructed around what Duff surely is correct to believe is an overlooked and under-theorized contrast: that between responsibility and liability (and between criminal responsibility and criminal liability in particular). Many theorists appear to treat the two concepts as equivalent. According to Duff, however, they are importantly distinct, even though the relationship between them is simple and straightforward: ‘‘Responsibility is a necessary but not a sufficient condition of liability. I am liable to conviction or blame for X only if I am responsible for X; but I can be responsible for X without being thus liable’’ (p. 20). Moral liability (admittedly an odd locution) makes one eligible for criticism and blame whereas criminal liability, as this quotation suggests, subjects one to conviction and punishment. Responsibility is a precondition for such criticism and blame in the moral domain and for conviction and punishment in the criminal arena. At the most general level, a person is a responsible agent if he possesses the capacities upon which participation in the range of responsibility-ascribing practices depends. The relevant capacities presupposed by any such practice involve responsiveness to reasons. Duff claims no special originality in this particular account of responsibility—an account that has been endorsed by a number of prominent contemporary philosophers. According to this conception, an agent is responsible if he has the capacity to recognize and respond to the various reasons that bear on his situation. Once a person possesses these capacities and thus qualifies as a responsible agent, we can begin to inquire what he is responsible for. If we focus only on responsibility for what is somehow untoward, DuffÕs fundamental contention is that persons are responsible for that for which they must answer, and they must answer for that for which there was reason not to do. A person is morally responsible if he must answer for what he had moral reason not to do, and criminally liable if he must answer for what, according to the criminal law, he had legal reason not to do. Presumably, a parallel account can be defended for each of the

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many existing responsibility-ascribing practices (e.g., games, employment) that might be identified. Responsibility (and its contrast with liability) is the key concept in Answering for Crime. Since responsibility is explicated in terms of responsiveness to reasons, and persons who are responsive to the relevant reasons can be required to answer for their conduct in the appropriate forum, I would have welcomed a more detailed discussion of what is involved in the capacity to respond to reasons, to what reasons criminal defendants must be responsive in order to count as responsible, and how the capacities required by the criminal law are similar to and different from those required in other contexts, especially those of morality. Countless questions arise, and the details are enormously hard to provide. First, what exactly is a reason? Although many theorists purport to distinguish between several different kinds of reasons, the genus of which these kinds are species is frequently regarded as a primitive. Next, what is involved in being responsive to a reason? Is reason-responsiveness a binary or a scalar concept? I assume that the latter is correct; children do not become responsive to reasons at some precise moment in their development. If so, can anything be said about how much responsiveness must a person possess in order to count as responsible? Might some environmental factors render a person insufficiently responsive to reasons to become non-responsible in that environment? In addition, to what reasons must an agent respond in order to be responsible in morality and law? A particular person may be responsive to reasons that work through some faculties but not others. If I threaten to punch you if you persist in your annoying behavior, you (and nearly everyone) will recognize a reason to desist. But the same person may not be responsive to reasons that work through capacities like empathy. If I threaten to punch a third party if you persist in your annoying behavior, a somewhat smaller number of people will recognize a reason to desist. Psychopaths, for example, are said not to recognize such a reason, or (to complicate matters) do not recognize this reason to be nearly as strong as average persons. Might they be responsible for some crimes but not for others? Their lack of

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empathy and non-responsiveness to moral considerations may conceivably render them non-responsible for crimes involving violence, but it is much harder to see why their deficiencies have any significance if they are charged with a malum prohibitum offense such as money laundering. Then again, perhaps the capacity to respond to prudential reasons—the threat of punishment directed against them—is all that is needed to justify a decision to make psychopaths answer for their criminal conduct. Duff is correct that the law should aspire to address citizens as moral agents, as persons capable of understanding and responding to moral reasons. We are not simply subjects who have duties to obey the commands of an Austinian sovereign. On the other hand, it does not follow that those relatively unusual citizens who are incapable of understanding and responding to moral reasons are unfit to be treated as responsible candidates for liability. In my judgment, psychopaths constitute an exceedingly hard case for attributions of criminal responsibility and liability. Duff offers some insights about these difficult issues, although he admits that his treatment is cursory. ‘‘There is clearly much more to be said about responsibility as reasonresponsiveness… but it cannot be said here’’ (p. 40). Perhaps it is unfair to expect a more thorough investigation of these complex matters in a book about criminal theory. Duff footnotes a number of prominent philosophers who have thought deeply about these questions and specialize in areas other than legal philosophy, although reasonable minds will differ about the extent to which their efforts are successful. The lack of detail notwithstanding, on most days I am convinced that the framework Duff constructs about responsibility is almost wholly correct. I know of no analysis that is preferable. In my more skeptical moments, however, I suspect that the entire enterprise of explicating responsibility in terms of answerability may be misguided. Why suppose that the questions I have posed will ever be resolved to our satisfaction? One might say that the concept of responsibility involves being an appropriate object of praise and blame, but the conception of responsibility in terms of answerability is open to question. In what follows, I

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will raise a problem for DuffÕs position. I do not insist that he cannot provide a satisfactory solution to the problem I will describe. I simply raise a difficulty he must confront—a difficulty for which he and his theory must answer. Suppose the police arrest Smith for a bank robbery of which he knows himself to be completely innocent. Smith is shocked to learn that video cameras at the scene contain films of a person who bears an uncanny resemblance to him. Moreover, a car parked outside of the bank from which the robber escaped is identical to the model of car owned by Smith. At a police line-up, eyewitnesses positively identify Smith as the robber. On the basis of the overwhelming evidence against him, he is charged with bank robbery and brought to trial. What must Smith do in this awful predicament? Is Smith responsible for the bank robbery—legally or morally? The answer seems simple: Of course not. He played no role in the deed and is a victim of mistaken identity. Notice, however, that he will be convicted and punished unless he can present a ‘‘defense’’ to preclude his liability. If liability entails responsibility, Smith will be held to be responsible. But surely the imposition of criminal liability would be mistaken. Yes and no. I have stipulated that Smith is innocent. Clearly, it follows that his punishment would be unjust. At the same time, no criminal justice system ought to acquit Smith when the evidence against him is overwhelming and he offers no ‘‘defense’’—like an alibi—on his behalf. Thus it seems appropriate to require Smith to respond to the charges against him when he is prosecuted under the foregoing circumstances. After all, he is in an ideal position to rebut the evidence against him. But why should he have to answer at all? According to Duff, he should be required to respond to the charges against him only if he is responsible. Yet we have already admitted that Smith obviously is not responsible for the robbery. Why, then, is it equally obvious that he should be required to answer to the charges or face penal liability if he cannot do so satisfactorily? Several replies to the above perplexity might be offered, but I am aware of none that is wholly adequate. Insofar as Duff addresses such situations, he appears to suggest that Smith

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should have to answer to the charge, even though he is not responsible for the charge (p. 206). But how does this subtle change in prepositions preserve the central thesis that responsibility consists in that for which we must answer? I had thought that persons should be required to answer in the appropriate forum only for that for which they are responsible. If his refinement is correct—which distinguishes answering to a charge from answering for a charge—it turns out that responsibility consists in something other than answerability after all. It is appropriate that Smith be made to answer because a bank robbery has been committed and there is sufficient evidence to believe that Smith has committed it. Thus all that is needed to justify a requirement that one must answer (to someone with the standing to require a response) is strong reason to conclude that the person is responsible. When such evidence exists, he can and should be made to answer in a criminal court. If so, criminal responsibility is hard to analyze in terms of answerability. We must answer even when we are held responsible by mistake. Responsibility Versus Liability. Suppose, however, that Duff is correct about the contrast between responsibility and liability. Why is this contrast so important? Although Answering for Crime addresses numerous problems in criminal theory, its most significant contribution is to provide an extended answer to this question. Duff insists that we will gain a deeper understanding of the structure of the criminal law and of the principles of criminal liability by distinguishing two sets of issues: first, the conditions under which agents may be held criminally responsible, that is, called to answer in a criminal court; second, the further conditions that must be satisfied before liability should be imposed on those who are criminally responsible. According to Duff, several of the conditions that theorists typically portray as negating liability actually serve to defeat responsibility (and vice versa). Control is an example. Since responsibility involves responsiveness to reasons, a person who lacks control over a state of affairs can hardly be expected to respond to reasons not to bring that state of affairs about. On the other hand, and as I will discuss further, Duff contends that

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an epistemic requirement is more complex. In asking about a so-called epistemic requirement, Duff is not simply raising the question of whether we may ever be punished for negligence. Instead, he is asking whether we may ever be responsible for our non-culpable ignorance, that is, for risks or consequences we could not reasonably have been expected to foresee. According to Duff, the absence of negligence functions differently in the criminal and moral domains, precluding responsibility in the former and liability in the latter. I will return to this intriguing thesis below. In what follows, I will briefly discuss a number of problems that Duff alleges we will understand more fully by remaining attentive to the distinction between responsibility and liability. Most important, I believe, is DuffÕs claim that the contrast between responsibility and liability maps the contrast between offenses and defenses, and has significant implications for how the former should be constructed. Offenses should be defined so as to identify presumptive wrongs, and the prosecution must present sufficient evidence that the defendant committed such a wrong. This evidence amounts to a showing that the defendant is criminally responsible—that she must answer for the offense. Proof of the offense is proof of responsibility, or proof that the defendant did what she had legal reason not to do. Burdens are allocated to the state only with respect to that for which defendants must answer, and it is sensible to require persons to answer only for presumptive wrongs. The Presumption of Innocence requires only that citizens be regarded as innocent until it is proved that they have committed an offense, that is, until it is established that they are criminally responsible. At this point, the defendant still may evade liability by offering an exculpatory defense—a justification or excuse that bars conviction and the infliction of punishment. Responsible defendants bear the burden to rebut the presumption that they are guilty by offering a defense that will block the transition from responsibility to liability. A true defense does not deny responsibility but alleges further considerations that preclude liability.

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Clearly, the foregoing view has practical implications for how burdens of proof should be allocated with respect to particular crimes such as rape. Defendants should not be required to answer in criminal court for every act of sexual penetration; thus rape statutes must include the element of nonconsent—an element for which states must bear the burden of proof. If sexual penetration itself were the crime (with consent functioning as a defense), the law would be interpreted to say that we have good reason not to engage in that conduct, even though such reason could be outweighed or defeated by the consent of the victim. If consent were treated as a defense, Duff might have added that even wives would be committing a presumptive wrong when they participated in an act of sexual penetration with their husbands. Few will find this view attractive, so nonconsent is better conceptualized as an element of the offense. Self-defense, however, functions differently; it must be proved by the defendant in a prosecution for murder, since the elements of a homicide statute describe a presumptive wrong for which a defendant may be called to answer without mentioning the absence of self-defense. In addition to proposing how particular offenses should be structured, Duff also makes a major contribution to our understanding of the logic of defenses—pleas, as we have seen, which concede responsibility but block liability. Because Duff contends that a plea of justification or excuse concedes responsibility—that the defendant has committed a presumptive wrong for which he must answer or face the imposition of liability—it is clear that some pleas universally recognized as excuses in textbooks in the United States do not qualify as genuine defenses. In particular, pleas of insanity or infancy contest rather than concede responsibility. Thus they should not be categorized as defenses at all. Instead, these pleas should be described as exemptions; they are unlike what are properly called defenses in that they allege the absence of responsibility because of the lack of capacity to respond to reasons. Surely Duff is correct to point out the structural differences between a paradigm case of excuse like (unjustified) duress and a plea of insanity. The question of whether this structural difference

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suffices to show that such pleas should not be regarded as excuses (or, indeed, as defenses of any kind) is one of the main terminological divides between theorists on each side of the Atlantic. Of course, the claim that exemptions should be distinguished from excuses, in that the latter but not the former concedes responsibility, is not simply terminological. Earlier, I indicated that DuffÕs model provides a basis for rejecting a wide range of criminal practice. For example, his categorization of exemptions as denying responsibility creates a powerful reason to allocate the burden of proof on states to prove sanity in cases in which defendants (through their agents) deny that they are able to answer for their conduct. Constitutional law in the United States currently imposes no such burden on states, and thus is deficient according to DuffÕs model. Even though exemptions like insanity are not genuine defenses—pleas that concede responsibility but block liability—Duff adds the concept of warranted belief and action to supplement the usual dichotomy between the true defenses of justification and excuse. I find the addition of the warranted helpful in thinking through problems of putative justification—situations in which a defendant believes (even reasonably) that he is justified but clearly would be unjustified if the facts were known. In such cases, clarity is gained by saying that the defendant should not be liable because his beliefs and actions are warranted, even though they are not justified. But I am less sure that adding the concept of the warranted to our hierarchy of defenses is useful for resolving problems of unknown justification—situations in which a defendant is unaware of facts that clearly would have justified his conduct were he to have known them (and to have acted because of them). In cases of putative justification, everyone agrees that liability would be unjust, even though they disagree about how the defense should be conceptualized. In cases of unknown justification, on the other hand, reasonable minds disagree about whether the defendant should be liable at all. We can agree that the defendantÕs presumptive wrong is unwarranted when he is unaware of a fact that would justify it. But how does this

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agreement help us? Duff seems to suggest that the unknowingly justified actor must be convicted unless the fact that allegedly justifies his behavior is treated not as a justification extrinsic to the offense but rather as negating an element of the offense for which he is charged (p. 279). But why must the exculpatory force of an unknown justification be construed in this way? The conduct in question is a presumptive wrong without the justification, whether the latter is known or unknown. In short, I find that some problems are clarified by adding a new concept (viz., the warranted) to our inventory of true defenses. In other cases, however, old questions resurface despite the novel guise in which they are posed. Concluding that an unknowingly justified actor is unwarranted in his behavior may help us to sharpen the question, but I am uncertain that we are closer to deciding whether he should be liable or not. And this question, after all, is presumably the payoff in adding the concept of the warranted to supplement the true defenses of justification and excuse. To be sure, many legal philosophers have argued that what is unknown cannot constitute a justification for conduct, since it is not something that can play a role in oneÕs answer for that conduct. Although I join Duff in finding this argument to be persuasive, its force can be appreciated without the need to employ the concept of the warranted. Among DuffÕs most important claims is that responsibility, and thus the liability that requires it, is necessarily relational. In every case, I am responsible not only for X but also to S—to a person or body who has the right or standing to call me to answer for X. Moreover, I am also responsible for X to S as Ø´—in virtue of satisfying some normatively laden description that makes me responsible for X to S. For example, I may be responsible for writing a competent review of DuffÕs book, but this responsibility derives from the status I gained by having agreed to do so with the editor of this journal. Most importantly, the board of the journal, the author, and members of the profession (and perhaps a few others) have the standing to call me to account if I fall short in discharging this responsibility. By contrast, it would be bizarre for a total stranger to demand that I must answer to him if my review is incompetent. If such a

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stranger persisted, I could properly refuse to answer on the ground that the matter was none of his business. Criminal responsibility is relational too. I am criminally responsible when I may be called by a legal official to account for the way I failed to discharge the responsibilities imposed on me by the criminal law. When I fail to answer adequately, I become subject to criminal liability, blame and punishment. The thesis that responsibility is relational is the key basis on which Duff resists the more extreme form of legal moralism defended by Michael Moore. Both theorists agree that ‘‘wrongfulness is not just a necessary condition for criminalization, but its proper focus: we should criminalize wrongful conduct because it is wrongful’’ (p. 80). Duff and Moore also agree that ‘‘the primary reason for criminalizing immorality is not to prevent it, but precisely to ensure that those who commit it are called to answer for it in a criminal court, and punished for it if they have no adequately exculpatory answer’’ (p. 84). But here they part company in a crucial respect. According to Moore, unexcused culpable wrongdoing always provides a reason for state punishment, although that reason may be overcome by a number of countervailing considerations. Since this reason is overcome quite frequently, Moore aptly describes himself as a liberal legal moralist. Duff disagrees vehemently, and adopts a different strategy. He insists that some wrongs for which I am morally responsible do not provide any reason at all in favor of state punishment. These wrongs do not render me eligible for criminal responsibility (and thus for liability) because they are private rather than public (p. 52). I am not responsible to the state, or to the community that stands behind it in a liberal democracy, for committing such wrongs. Only public wrongs concern the public; the state has standing to require me to answer for them. These behaviors are wrongs against the polity as a whole, not just against their individual victims. By contrast, when a wrong is private, standing to demand a response rests with the victim and those who are appropriately related to him. Moore believes that some wrongs should not be punished because the reason in favor of punishment is overridden by a more weighty reason on the other

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side. Duff, on the other hand, believes that some wrongs—those that are private—do not give rise to a reason in favor of responsibility that needs to be outweighed. The difference between these two modes of legal moralism can scarcely be exaggerated. If Duff is correct, ‘‘a central task for a normative theory of criminal law, as an account of what we should be criminally responsible for, is therefore to explain this notion of the public and to identify the principles, criteria or considerations that can help us to determine which wrongs should count as being in this sense public’’ (p. 52). I concur that a development of the contrast between public and private wrongs is crucial. This distinction is a pillar in the project to retard the process of overcriminalization to which legal moralism might otherwise contribute. Unfortunately, in keeping with his reluctance to stray too far into substantive matters, Duff does little to draw this elusive contrast in Answering to Crime. Clearly, a political theory is required to meet the enormous challenge of distinguishing public from private wrongs. In the version of legal moralism championed by Moore, moral theory appears to do all of the substantive work and a political theory of the state is not needed. The thesis that some but not all moral wrongs provide a reason for criminalization is the most important innovation in the version of legal moralism defended by Duff. The relational dimension of responsibility also enables Duff to conceptualize exculpatory claims that resist simple categorization within familiar defense hierarchies. Suppose that a black South African is brought to trial in the era of apartheid. His systematic exclusion from citizenship in the polity in whose name the trial is held seems to be material to whether he has a duty to respond. But how? According to Duff, extreme discrimination and the deprivations it produces cannot plausibly function as a true defense for criminal behavior. Instead, we can say that the defendant is not responsible to the court that would try him. The pervasive injustice he has suffered is a moral bar to trial roughly analogous to estoppel—a bar we can better understand by construing responsibility as relational.

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Although moral and criminal responsibility tend to share a common structure, Duff alleges that they have several important dissimilarities—dissimilarities we may miss if we confuse responsibility with liability. Among the most important alleged dissimilarity is DuffÕs complex thesis about the epistemic condition: moral responsibility typically is strict, while criminal responsibility is not. Suppose, for example, I flick a switch in a defective electrical system that I could not have suspected would cause an explosion that injures you severely. In the moral domain, Duff proposes that I am responsible for your injury, despite the absence of any form of culpability. I am responsible because I must answer to you (and possibly to others) for what I have done by apologizing to you and by explaining just how the injury came about. Presumably, my failure to admit my responsibility when called upon to answer for your injury is an additional defect for which I am responsible. After all, I did what I had moral reason not to do, even though I did not know, and could not have been expected to know, that flipping the switch was something I had reason not to do. If someone had alerted me to the fact that my action would cause the explosion, I would not have acquired a new reason not to act, but would have become aware of the reason that existed all along. In the criminal domain, however, Duff alleges that matters are very different. In the same example, I need not be made to answer for your injury in a criminal court because I was not culpable in causing it: responsibility simply has not been established in the absence of mens rea. The lack of culpability negates an element of the offense and thus precludes criminal responsibility, whereas the absence of mens rea functions as an excuse that concedes responsibility in the moral domain. The kinds of wrongs that concern the criminal law rarely are strict; I must answer in court not merely for causing harm, but for doing so intentionally, knowingly, recklessly, or (perhaps) negligently. This supposed asymmetry bears careful scrutiny. I suspect that only a few theorists will be tempted to reject DuffÕs thesis about the difference between criminal and moral responsibility by contesting his allegations about criminal responsibility. Paul

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Robinson may be among the few theorists who do so. Robinson famously contends that a properly structured penal code should endeavor to exclude mens rea considerations from its rules of conduct. Persons should simply be instructed not to cause injury, with no need to mention whether they are culpable when they cause it. According to Duff, however, the lack of mens rea cannot plausibly be construed as a rule of adjudication or as a defense from criminal responsibility. Culpability should be treated as an element of the offense to be proved by the state. But is Duff correct that moral responsibility is different in this respect? As far as I can see, his claim about the strictness of moral responsibility is driven almost entirely by intuitions. I admit that these intuitions are powerful. Still, we might seek a deeper explanation of the alleged disparity, since some theorists may not share these intuitions. Of course, everyone should concede that law must be differentiated from morality for many practical reasons. As Duff points out, the stakes of a criminal conviction are extraordinarily high; our justice system must adopt special precautions not to punish the innocent or even to require potential defendants to expend the time and effort of mounting a defense simply because they have satisfied the actus reus of an offense. But Duff maintains that there is ‘‘a stronger reason of principle’’ (p. 231) to suppose that responsibility should not be strict in law, despite being strict in morality. His reason is puzzling. He writes: ‘‘Since the criminal law is concerned only with public wrongs that merit public condemnation, we should have to answer in a criminal court only for what is at least a presumptive wrong of the appropriate kind. Outside the law, I must answer for the harms that I cause, as a matter of moral responsibility… Within the criminal law, however, what is at stake is… liability to condemnation for wrongdoing: it would not be reasonable to expect citizens to answer for anything less than a proved presumptive wrong’’ (pp. 231–232). As far as I can see, this so-called ‘‘reason of principle’’ simply repeats the controversial thesis itself or rehearses the earlier ‘‘practical’’ consideration Duff purported to supplement. Surely the fact that crimes are public wrongs adds nothing to his case; the

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public nature of criminal wrongs does not suffice to show that criminal responsibility, unlike moral responsibility, should not be strict. The wrong done (and harm caused) by flipping the light switch and innocently causing injury, after all, clearly is public—if it is a wrong at all. Ultimately, then, I fear that DuffÕs central thesis about the difference between moral and criminal responsibility depends on intuitions I admit to have but am unable to defend to a critic who does not share them. The thesis that moral responsibility is relational and typically is strict appears to have implications for the substantive question of what we are responsible for. Must we answer for our failure to be good Samaritans and come to the assistance of refugees in far-away places? Suppose, for example, I am criticized by a bird-lover for my failure to contribute to the ‘‘Save the Kiwi’’ fund. Need I respond to him at all? Is my failure to answer when called upon to do so a separate moral failing? If I decide to respond to him, suppose I (truthfully) say that I did not know that such a charity exists and have no idea what a kiwi is. Should this answer be conceptualized as an excuse for my failure—an excuse that concedes responsibility while contesting moral liability? If Duff is correct about the structure of moral responsibility, those who believe I need not answer for this criticism have reason to deny that I am responsible for this failure in the first place. This example shows that DuffÕs concern with the structure of moral and criminal responsibility and liability has important implications for substantive concerns, even though he is reluctant to draw them. I eagerly await his sequel, in which I anticipate that many of these substantive implications will be developed. In 1978, George Fletcher published his masterful Rethinking Criminal Law. In my judgment, only about half a dozen books published in criminal theory since that time are ‘‘musts,’’ that is, works that anyone who purports to specialize in the philosophy of criminal law is required to read. Antony Duff now has written two of these books (the other is Criminal Attempts). For good reason, my review has been more expository than critical. I am unsure that I have devastating objections to any of the fascinating theses and central arguments Duff so ably de-

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fends. Thus it would be uncharitable for me to conclude with the compliment typically paid to good books: no subsequent writer on the structure of criminal responsibility and liability can afford to neglect Answering for Crime. My opinion is far more favorable. Instead, I believe that any future work on the structure of criminal responsibility and liability must begin with DuffÕs work. No existing book in the philosophy of criminal law can rival the breadth, scope, and sophistication contained in DuffÕs analysis. I admire Answering for Crime deeply and recommend it strongly not only to criminal theorists, but also to all philosophers interested in how criminal theory sheds light on normative inquiry generally. Douglas Husak Department of Philosophy Rutgers University, 26 Nichol Avenue, New Brunswich, NJ, 08901, USA E-mail: [email protected]