Legal Obligation and the Criminal Law

Citation

Duff RA (2020) Legal Obligation and the Criminal Law. In: Bertea S (ed.) Contemporary Perspectives on Legal Obligation. London: Routledge, pp. 116-132. https://www.routledge.com/Contemporary-Perspectives-on-Legal-Obligation/Bertea/p/book/9780367261986

Abstract
Antony Duff’s contribution is concerned with the obligations that we might be held to have in relation to the criminal law. In this context, Duff makes two main arguments. First, criminal law theorists often describe the criminal law’s offence definitions as ‘prohibitions’ that citizens are obligated to obey: though this way of talking fits naturally with talk of the criminal law as imposing obligations, it is at best misleading: these offence definitions should not, typically, be understood as imposing obligations to refrain from the conduct they define as criminal, or as consisting in prohibitions that we are to obey. Second, theorists of political obligation also commonly take it that that obligation is an obligation to obey the law. Duff notices that this implies an overly deferential attitude towards the law on the part of citizens; we should instead talk of the responsibility of citizens of a democratic republic to play an active role in the enterprise of criminal law, as part of the larger civic enterprise of self-government under the rule of law.

• Accepted manuscript