"O Call Me Not to Justify the Wrong": Criminal Answerability and the Offence/Defence Distinction

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Abstract

Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing.
Original languageEnglish
Pages (from-to)227-45
Number of pages19
JournalCriminal Law and Philosophy
Volume6
Issue number2
DOIs
Publication statusPublished - Jun 2012

Keywords

  • Answerability
  • responsability
  • defeaters
  • Offence/defence distinction

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