1
Responsibility, Citizenship and Criminal Law
R A Duff
1
It would be rash to posit a single, determinate purpose or function as the purpose or function of criminal law. That would be misguided as an interpretive claim about existing systems of criminal law: we cannot understand a set of institutional practices with as long and complex a history as those that constitute the criminal law of any developed polity in terms of any single purpose or function. It might seem more tempting to posit some unitary purpose as a matter of normative theory: to argue, for instance, that the purpose of criminal law is to maximize dominion,
2
or to achieve retributive justice by securing the punishment of moral wrongdoers.
3
I cannot argue the point here, but believe that such normative claims are also untenable: any plausible normative theory of criminal law will be complex and messy,
4
positing a collection of purposes that cannot fit together into a tidy whole. This paper starts with a less ambitious claim: not about the purpose, but about a central, distinctive purpose of criminal law—one that helps distinguish criminal law from other modes of legal regulation.
My claim is modest in another way. To posit either the or a purpose of ‘criminal law’ might be taken to make a claim about all systems of criminal law, at all times in all places; but I make no such claim here. My starting point is more local, with our systems of criminal law, rather than with ‘criminal law’ as such. That identifying description (‘our systems’) is deliberately vague: I leave open the question of how wide its extension might be, of how large a ‘we’ can join in the discussion of the purposes of ‘our’ criminal law. I begin with an imagined (though I hope not imaginary) group of potential interlocutors: of theorists who work within the broad traditions of western liberalism, and citizens (including theorists) who live in polities that aspire to be liberal democracies. It would be a substantial achievement to engage, and to secure either agreement or fruitful disagreement, with a ‘we’ of that scope. We must also hope that the conversation can expand—and one task for legal theorists is to see how far it can expand, and which other conversations they can join. But my present concern is with the earlier stages of that process—with what a relatively limited ‘we’ can say about our systems of criminal law.
A distinctive and proper purpose of our criminal law has to do, I will argue in s. 1, with accountability and the attribution of responsibility. The criminal law provides the institutional framework within which, and procedures through which, perpetrators of public wrongs can be called to account (held responsible) for those wrongs. Such a practice of calling to account is possible, however, only within a normative community to which both called and callers can be said to belong. In s. 2 I will discuss the kind of community that our criminal law, criminal law of a kind apt for a liberal republic, requires, and argue that in the context of the domestic criminal law of nation states (still the salient paradigm of criminal law) it is the community of citizens. Anyone who gives citizenship this central significance faces a range of objections, to the effect that such a conception of criminal law cannot do justice to transnational criminal law, to the status of non-citizens who are either permanent residents of or temporary visitors,
1 Thanks to participants in the Rutgers workshop at which an earlier version of this paper was discussed, and especially to Stuart Green.
2 See J Braithwaite and P Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Oxford
University Press, 1990).
3 See MS Moore, Placing Blame (Oxford: Oxford University Press, 1997), ch 1.
4 See the comments on complexity and messiness in the Introduction, at nn 17-27.

2 or to the status of citizens who may find themselves excluded from full membership of the polity; that it fosters a dangerous distinction between an exclusive group of ‘citizens’, who as full members of the polity and receive all the protections that the criminal law offers both victims and offenders, and a wider group of outsiders, of actual or potential ‘enemies’, to whom such membership and protection are denied. I will face such objections in s. 3, and will argue that although the concept of citizenship can be given this unacceptably exclusionary significance, we need not do so: we can and should retrieve a more inclusionary conception of liberal citizenship that can structure a normatively plausible picture of criminal law.
1. Answering for Crime
5
The criminal law, in its substantive dimension, defines certain types of conduct as criminal
(and defines certain defences for those who commit such criminal conduct). In so doing, it defines and condemns such conduct as wrong: not merely, and trivially, as legally wrong, as a breach of the rules of this particular game, but as morally wrong in a way that should concern those to whom it speaks, and that warrants the further consequences (trial, conviction and punishment) that it attaches to such conduct. To say that it defines such conduct as wrong is not, however, to say that it creates that wrongfulness: although it is trivially true that criminal conduct is criminally wrongful only because the criminal law so defines it, it is substantively false to say that such conduct is morally wrongful only because the criminal law defines it as wrong. The criminal law does not (cannot) turn conduct that was not already wrongful into a moral wrong: it does not determine, but presupposes, the moral wrongfulness of the conduct that it defines as criminal; it determines which pre-criminal wrongs should count as ‘public’ wrongs whose perpetrators are to be called to public account. Its adjectival dimension then specifies the procedures through which those accused of perpetrating such wrongs are called to account: the criminal trial, as the formal culmination of the criminal process, summons a defendant to answer to a charge of public wrongdoing, and to answer for that wrongdoing if it is proved; if he cannot offer an exculpatory answer, he is convicted and thus condemned as a wrongdoer. Finally, in its penal dimension, the criminal law provides for the determination and administration of punishments for those convicted of such public wrongdoing.
To spell out this conception of criminal law in a little more detail, we can begin with the familiar range of so-called mala in se
—crimes consisting in conduct whose (supposed) moral wrongfulness is largely independent of the law. We do not need the criminal law to tell us that rape, murder, and other attacks on the person are wrong. It rather takes for granted our pre-criminal understanding of these as wrongs from which we already have good reason to refrain, and identifies them as wrongs that are ‘public’ in the sense that they are the business of the whole polity and require a public response from the polity.
6
The salient purpose of criminal law, on this view, is not directly to guide conduct (although the prospect of criminal liability might have that effect, and securing that effect might be a proper purpose for criminal law); it is to provide for an appropriate formal, public response to the pre-legally wrongful conduct that it defines as criminal. That response includes police action, preventive and investigative; prosecutorial action in deciding whether and how to pursue alleged
5 For more detailed discussion, see my Answering for Crime (Oxford: Hart Publishing, 2007), chs 4, 6.
6 Note first, however, that the criminal law may provide distinctive definitions of the public wrongs that it identifies, especially when the pre-criminal understanding of those wrongs is conflicted or uncertain.
Second, my claim is not that only morally wrongful conduct is actually criminalized, but that to criminalize conduct must be to portray it as morally wrong (see V Tadros and S Tierney, ‘The Presumption of
Innocence and the Human Rights Act’ (2004) 67 Modern Law Review 402).

3 offenders; court action in trying alleged offenders and sentencing convicted offenders; and punitive action in punishing sentenced offenders. What is central to it, however, is holding alleged public wrongdoers to public account. (By ‘public’ wrongs, and holding to ‘public’ account, I do not refer only to wrongs committed ‘in public’ or having a direct impact on ‘the public’, or only to callings to account conducted in public, like criminal trials in open court.
A domestic assault committed in the home is as much a public wrong as an assault committed in a public street, since it is as much a wrong that properly concerns all members of the polity: to call a wrong public in this sense is not to give a reason for the public to take an interest in it, but to express the judgment that it is their business.
7
An offender who receives a formal caution, or a prosecutor’s fine, 8 without going to court is still called to public account, by an authorised public official, whose actions are subject to public scrutiny, acting on behalf and in the name of the polity.)
It might seem that even if this account of criminal law can deal with mala in se , it cannot cope with so-called mala prohibita , which are orthodoxly understood as offences consisting in conduct that is not wrongful prior to its legal proscription.
9
But it can make room for mala prohibita (though we should not expect it to justify the vast range of such offences found in our existing laws) once we distinguish the question of regulation from that of criminalization.
There are two routes to criminalization—more precisely, two routes to the determination that we have good reason in principle to criminalize a particular type of conduct (the question of whether we should all things considered criminalize that conduct raises further very complex issues). One begins with wrongfulness: we ask of some kind of pre-legally wrongful conduct whether it involves a type of wrong that is in principle the polity’s business, and that merits public condemnation as a wrong; we thus identify a category of potential mala in se .
10
The other route starts with a decision that we have reason to regulate a particular type of conduct, a reason that does not depend on the wrongfulness of such conduct. We have good reason, for instance, to regulate driving; and while some of the regulations that we may introduce will be grounded in pre-legal moral demands (as speed limits are grounded in the demand to drive safely), others (such as regulations concerning driving licences or vehicle registration) cannot be seen as formalised versions of such moral demands—indeed, it is, often impossible to engage in the conduct prohibited by the regulation prior to the regulation’s existence. Now such regulations must of course be justified by showing, as with any legal regulation, that they serve an aspect of the common good. But that justification need not be grounded in the supposed pre-legal wrongfulness of the conduct in question; nor have we yet asked how the regulations should be enforced, or how we should respond to breaches of them. The question of criminalization comes up only when we ask that latter question; and we have good reason to criminalize such breaches if and only if, given the regulation and its justification, a breach of it constitutes a moral wrong for which the perpetrator should be called to public account.
11
7 See SE Marshall and RA Duff, ‘Criminalization and Sharing Wrongs’ (1998) 11 Canadian Journal of Law and Jurisprudence 7; also MM Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis
(Oxford: Oxford University Press, 2009), especially chs 8-9.
8 See P Duff, ‘The Prosecutor Fine’ (1994) 14 Oxford Journal of Legal Studies 565.
9 See D Husak, ‘ Malum Prohibitum and Retributivism’, in RA Duff and SP Green (eds), Defining Crimes
(Oxford: Oxford University Press, 2005) 65; Overcriminalization: The Limits of the Criminal Law (Oxford:
Oxford University Press, 2007), 103-119. The distinction between mala in se and mala prohibita is of course neither clear nor undisputed.
10 I leave aside the complicating, but not now crucial, point that our understanding of some mala in se may be structured by the law, as our understanding of theft is structured by the law of property; see AM Honoré,
‘The Dependence of Morality on Law’ (1993) 13 Oxford Journal of Legal Studies 1.
11 See further Duff (n 5 above), chs 4.4, 7.3. The conduct constituting a malum prohibitum is thus not necessarily wrongful prior to its legal regulation, but must be wrongful prior to its criminalization.

4
That is why it is misleading to say (as it is often said) that the substantive criminal law consists in ‘prohibitions’: for that implies that the criminal law seeks to make wrong what was not wrong before, or to offer us new reasons (reasons grounded in its authority or power) to refrain from the conduct that it criminalizes. What is distinctive about criminal law, what marks it out from other modes of legal regulation, is that rather than prohibiting or requiring conduct, it defines certain types of conduct that are already supposedly wrongful as wrongs of a kind that call for a particular kind of response—a response that formally condemns that conduct, and that seeks to call its perpetrator to public account: criminal law is focused on the polity’s formal response to the conduct with which it deals.
It is thus from this perspective significant that criminal codes are not typically cast in the language of prohibitions: they rather tell us that a ‘person is guilty of’ a specified offence if ...
( Model Penal Code ), or ‘commits an offence if ...’ (a standard formula in English statutes); or that ‘[w]hoever’ acts in a specified way ‘shall be liable to’ a specified punishment (German
Strafgesetzbuch ); or that certain kinds of act ‘constitute’ a specified offence, or ‘are punished’ by a specified kind and degree of sentence (French
Code Pénal
).
It might seem that what is most distinctive of the criminal law’s response to crime is that it involves punishment: this is explicit in the formulations of French and German law, and is perhaps implicit in the formulations of English and American law. It is true that punishment is a significant aspect of our formal responses to crime: any adequate theory of criminal law must either explain the legitimizing rationale of punishment or show how criminal law can do without it. But the criminal process that connects crime to punishment is an independently significant dimension of the formal response for which the criminal law provides. A criminal trial (the most publicly visible manifestation of the criminal process) is not just a procedure through which punishments are allocated to those who supposedly deserve them. It is best understood as a process through which alleged offenders are called to answer or to account: to answer to the charge of wrongdoing (initially by pleading ‘Guilty’ or ‘Not Guilty’); and then, if the prosecution proves that they committed the offence charged, to answer for that commission—either by offering an exculpatory defence, or by accepting the condemnation that a conviction expresses.
12
The criminal process is not the only legal process through which people may be called to answer. Some civil cases have this character, at least in the eyes and intention of those who bring them: their aim is not so much to secure the compensation that provides their suit’s formal focus, as to bring to account those whom they hold responsible for the loss they have suffered. First, however, a civil case is formally focused on providing remedies rather than on calling anyone to account: the question is who should bear the cost of the harm that must be repaired or averted. Second, the formal focus is on harms rather than wrongs: even if fault, and thus wrongdoing, is a condition of civil liability, the focus is on paying for the harm for which the defendant is culpably responsible rather than on the wrongfulness of his conduct.
13
Third, the case is brought by the allegedly injured plaintiff: although the law enables her to pursue the complaint, it is her case; it is to her that the defendant (if liable) owes explanation, apology and compensation. In many criminal cases there is also a direct victim to whom the defendant owes something,
14
and there is much to be said about the role of victims in the criminal process: but the case is brought by the state or the polity, not by the direct victim;
12 See further RA Duff, L Farmer, SE Marshall, and V Tadros, The Trial on Trial III: Towards a Normative
Theory of the Criminal Trial (Oxford: Hart Publishing, 2007).
13 Punitive damages, which precisely focus on fault and wrongdoing, are inconsistent with this account, but are arguably inconsistent with the proper purposes of civil law.
14 Though what he owes, what (if anything) could count as reparation for wrongdoing, is another question that we cannot pursue here.

5 the defendant is called to answer by and to, not (just) the direct victim, but the whole polity.
That is the force of calling crimes public wrongs: they are wrongs in which the whole polity takes a proper interest, not simply by providing the institutions through which victims can pursue ‘their’ offenders, as the civil law does, but by calling the offender to answer for a wrong that is public rather than private.
If this is right, however, it raises a further important question about the criminal law: who calls the alleged wrongdoers to account; to whom must they answer?
2. Criminal Law and Civic Community
A central purpose of criminal law which distinguishes it from other modes of legal regulation is to provide for those who commit public wrongs to be called to public account for what they have done. Now any account of criminal law raises questions about who has the authority to do what to whom: whether we see criminal law as, for instance, a technique for preventing harm by deterring or incapacitating potential harm causers, or as a method of ensuring that wrongdoers suffer the punishments they deserve, we must ask not only who should be subject to the criminal law’s coercive attention, but who is authorised to coerce them, in whose name.
An account focused on calling to account raises such questions very directly. We must ask, of course, who is called to account; and the obvious first answer—‘those who commit public wrongs’—cannot be a full answer, since any plausible criminal process must also summon some innocents to answer to criminal charges. So we need an account of the conditions given which people who might well be (and must be presumed to be) innocent may be subjected to investigation and prosecution; of the procedures through which people may be called to answer, and the conditions given which they may be convicted. But we must also ask by, and to whom, they are called to account. For accounting is a two-way relationship: A is called to answer by and to B , who claims the right thus to hold A to account. When A is the defendant in a criminal trial, who or what is B ?
Furthermore, a practice of calling to account presupposes a community to which caller and called belong, within which this process makes sense. More precisely, it must presuppose a linguistic and normative commonality; and a substantial community, though not necessarily one to which caller and called both fully belong.
It must presuppose some linguistic and normative commonality because when B calls A to answer, the legitimacy (indeed, the intelligibility) of that calling depends on A being able to understand and respond: it makes no sense to call someone to answer if that person cannot do so.
15
But the calling (and answering) must then be conducted in a language that is, even if it is not A ’s (or B ’s) own language, is accessible to him either directly or, failing that, through an interpreter. It also requires that the values by reference to which A is called to account, the values that he is accused of violating, are accessible to him as values that he could make his own. We call A to account for doing something that he should not, we claim, have done, i.e. for acting as he had good reason not to act; but we can say that A ought to
Φ
, or has good reason to
Φ
, only if that reason to
Φ
is within A
’s conceptual and motivational grasp.
16
15 Which is why it matters that the defendant in a criminal trial is fit to plead—able to understand and answer to the charge.
16 There is much more to be said than I can say here about the sense in which the reasons that we take A to have must be within his reach (for useful surveys see J Lenman, ‘Reasons for Action: Justification vs.
Explanation’, Stanford Encyclopedia of Philosophy (Spring 2010) ( http://plato.stanford.edu/archives/ spr2010/entries/reasons-just-vs-expl/ ); S Finlay and M Schroeder, ‘Reasons for Action: Internal vs.
External’, Stanford Encyclopedia of Philosophy (Fall 2008) ( http://plato.stanford.edu/ archives/fall2008/ entries/ reasons-internal-external/).

6
Furthermore, in calling A to account we seek a response from him—an answer that might involve a denial that he acted as we allege; or a denial that he violated the values to which we appeal; or a reasoned denial of those values; or an explanation of his action which, whilst admitting that he acted against the reasons that we cite, seeks to justify or excuse his action; or an admission that he acted wrongly, and an apologetic explanation of his conduct which does not seek to exculpate him. But whatever kind of answer he is to give, he will be able to give it only if he can understand the charge to which it is to be an answer: only if he can understand, that is, not merely whatever factual claims we make about what he did, but the values to which our accusation appeals, and recognise those values as imaginable sources of reasons for action.
I won’t spend longer on the need for this kind of linguistic and normative commonality between caller and called here, because our concern is with a more substantial requirement of community as a framework within which people can be called to account.
Calling to account involves a relationship between caller and called: a relationship which, though it might be transformed by the calling (and answering), cannot be created ex nihilo by this interaction. There must be some relationship between B who calls and A who is called that gives B the right or the standing thus to call A : some relationship that makes A ’s alleged wrongdoing B
’s business, and that entitles
B to make this demand. This is a central aspect of our dealings with each other—that not everything is everyone’s business. If you see me in a cafe, eating a large hamburger with double chips, you might think that I am being imprudent with my health; but if you take it on yourself to approach me and call me to account for my behaviour, I might reasonably respond, not by answering to you for my conduct (explaining, justifying, excusing my behaviour, or admitting its imprudence), but by saying that it is none of your business. I answer to some people for my dietary misconduct—my family, my doctor, perhaps my friends; but I am not answerable to you, a passing stranger.
17
To show that A is being legitimately called to account, we must show not just that there is something for which he should have to answer, but that those who call him have the standing to do so—that it is their business. We must therefore understand just who is calling the defendant to account in a criminal trial; only then can we ask whether they have the appropriate standing.
It might seem that I am exaggerating the problem here. I have argued that criminal law is concerned with moral wrongdoing (of certain kinds); but whilst my dietary or other species of imprudence might not be a stranger’s the business, surely moral wrongdoing is the business of every moral agent.
18
So what gives us standing to call criminal offenders to account is the fact that we are all members of the broad, indeed universal, community of moral agents. Such a view is implied by Moore’s account of the function of criminal law—to punish ‘all and only those who are morally culpable in the doing of some morally wrongful act’:
19
if an action is made eligible for the criminal law’s attention by its culpable immorality, it is the business of all moral agents. One question that this suggestion provokes is whether moral wrongdoing is always the business of all moral agents. That seems true of the most egregious moral wrongs: if I see or become aware of a murder, a rape, a violent assault, a serious fraud, I cannot say that it is none of my moral business and literally or metaphorically pass on by; I have reason to intervene, or to take steps to secure intervention by others.
20
But there are many wrongs in
17 Matters might be different if your reason for challenging me had to do not with my health but, for instance, with the immorality of eating meat; I turn to this kind of case shortly.
18 Compare TM Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, Mass: Harvard
University Press, 2008), 139-40: ‘the moral relationship’ that grounds the legitimacy of moral blame is a matter of the ‘mutual concern that, ideally, we all have toward other rational beings’—thus including nonhuman rational beings, if there are any, but not non-rational human beings.
19 Moore (n 3 above), 33-5.
20 I have moral reason to intervene, even if I have no legal duty to do so.

7 relation to which both wrongdoer and victim can reasonably rebuff an intervener with some version of ‘It’s not your business’: the wrongdoer can argue that he is not answerable to this stranger; nor can we plausibly explain this by saying that whilst any other moral agent has reason to intervene, countervailing reasons often make intervention on balance inadvisable. If
I regularly fail to buy my round for the friends with whom I drink, that is their business; but it is not even in principle the business of the passing stranger who happens to hear about it.
However, even if all moral wrongdoing is in principle the business of all moral agents, this does not provide a plausible account of whose business crime is: of who has the standing to call criminal wrongdoers to account. For, first, the criminal law is not properly concerned with every kind of moral wrongdoing: on some matters it is appropriate, in a liberal polity, to say that certain moral matters are, ‘in brief and crude terms, not the law’s business’.
21
It could be argued that although all moral wrongs are in principle the criminal law’s business (there is good reason to criminalize them so that their perpetrators can be called to account), for many kinds of moral wrong there are persuasive countervailing reasons against criminalization:
22 but it seems as implausible to say that there is reason to criminalize my failure to buy a round as to say that it is anyone’s moral business except my friends.
Second, domestic criminal law is limited not merely in the kinds of wrong over which it claims jurisdiction, but in the jurisdiction it claims even over the kinds of wrong with which it deals. If a Polish citizen attacks a French citizen in Germany, that is not a crime for which he could be tried or convicted in an English court, even if he happened to come to England, and sufficient evidence for a conviction was available in England. He might be arrested, and extradited to face trial in Germany:
23
but to extradite someone is not to call him to answer in the jurisdiction from which he is extradited; it is to assist another jurisdiction in holding him to account under its laws.
It might be argued that this is a matter of pragmatic convenience (and of international politics). What ultimately matters is that wrongdoers be brought to account, but it is sensible that those who are best placed to discharge this task should take charge of it; when properly functioning nation states are able and willing to deal with wrongs committed within their territory, they should be allowed sovereignty over these as over other matters, and neither other states nor international bodies should have the right to intervene.
24
This provides one rationale for the Territoriality Principle, which largely determines the issue of jurisdiction in many legal systems:
25
a state’s courts have jurisdiction over all crimes committed within its territory. One way to put this point would be to say that the offences defined by the criminal law can be committed anywhere, so that the Polish assailant commits the crime of wounding under English law; but that English courts have no jurisdiction over that token of the crime.
That would, however, be misleading: criminal statutes passed by the UK legislature do not extend to other parts of the world (they might not extend to all parts of the UK). The better way to put the point is that an assault in Germany is not a crime under English criminal law:
21 As the Wolfenden Committee famously put it, in relation to consensual homosexual activity between adults
J Wolfenden, Report of the Committee on Homosexual Offences and Prostitution (London: HMSO, 1957), para 61. Even those who believe, misguidedly, that such conduct is morally wrong should also agree that this is not a moral issue on which the criminal law should take a view—that it is in that sense private.
22 Compare Moore (n 3 above), ch 16; ‘A Tale of Two Theories’ (2009) 28 Criminal Justice Ethics 27, at 31-
3.
23 On whether he could be tried in France or in Poland, and on the ‘universal jurisdiction’ that some systems of domestic criminal law claim over some crimes, see at nn 30, 32 below.
24 Compare the account of international law offered in A Altman and CH Wellman, A Liberal Theory of
International Justice (Oxford: Oxford University Press, 2009), esp ch 4; and see Wellman in this volume.
25 See M Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford University Press, 2003), ch
1; also e.g. German Criminal Code s 3.

8 not because English law permits such conduct, but because it has no authority over it and is therefore rightly silent about it. If we ask why that should be, an obvious answer is that this promotes the efficient enforcement of the demands of criminal justice, whilst respecting state sovereignty: so long as a state deals efficiently with the kinds of wrong committed within its territory that require some formal response, it should be left free to do so; other states should not intrude by trying to deal with such wrongs themselves. English law and courts should be allowed exclusive local jurisdiction over crimes committed in England, if and because this is an efficient way to satisfy the (universal, non-local) demands of justice. Should a state utterly fail to satisfy those demands of justice, however, other states or international bodies might be entitled to intervene. They hold back from claiming jurisdiction (a jurisdiction which they could in principle have claimed) over crimes committed within another state’s borders out of respect for that state’s sovereignty and a recognition that it is better placed to deal with such crimes; but that in principle claim can be revived if that condition is not satisfied.
That answer, however, seems unsatisfying, rather as comparably impersonal accounts of morality are unsatisfying. Moral philosophers sometimes struggle to make moral sense of a range of partial, particular attachments that are central to our lives, but that do not fit easily into the structure of impartialist moral theories, in particular consequentialist theories whose grounding principle is some version of the Utilitarian maxim that our single moral duty is to promote the greatest good of the greatest number. From the perspective of that impersonal maxim, our particular attachments to our friends, families, colleagues, countries seem hard to justify: surely we could often achieve more good by benefiting strangers than by benefiting our own friends, family, colleagues or fellow citizens. On the other hand, and though most of us should certainly do much more than we do for distant strangers, it is very hard to imagine a satisfactory human life without such partial attachments: can we really accept that we act wrongly in showing preference for friends, families, and others who are in various ways close to us?
26
I cannot discuss this question here, save to notice one kind of attempt to reconcile the demands of an impersonalist morality with our partial attachments by arguing that we usually serve those impersonal demands most efficiently by fostering suitable partial attachments: I may pay special attention to my friends, my family, and so on, so long as by doing so (and by maintaining those dispositions that lead me to do so) I am actually doing as much as could be reasonably expected of me to advance the general good. However, apart from doubts about the large empirical claims on which such arguments depend, they do not do justice to the role that such attachments play in our lives: the worth, including the moral worth, of my love for my friends or family does not depend on the contribution that such love, or the disposition it manifests, makes to some larger, universal, general good; we find its value within, rather than beyond, the relationships that it structures.
27
Somewhat similarly, such a pragmatic or instrumentalist explanation of the jurisdiction of domestic criminal law should be unsatisfying for members of any properly functioning polity.
One reason for this emerges when we ask why it seemed important for Saddam Hussein to be tried in Iraq for crimes he committed against Iraqis; or why people might object when ‘crimes against humanity’ committed within a particular nation (as happened in former Yugoslavia, for instance) are taken over by the International Criminal Court; or why it would have been better for Augusto Pinochet to be tried in Chile for his crimes against Chilean victims, rather than in a European state’s courts under a claim of universal jurisdiction; or why the victim of a serious attack (and those close to him) might not be content to see his attacker convicted in
26 Some would say firmly that we do, because mere distance (whether physical or psychological) cannot be a relevant modifier of the basic demands of morality—a position associated particularly with Peter Singer.
27 L Blum, Friendship, Altruism and Morality (London: Routledge, 1980); J Cottingham, ‘Partiality and the
Virtues’ in R. Crisp (ed), How Should One Live? (Oxford: Oxford University Press, 1996), 57.

9 a foreign court, even if he was able to attend. The thought is in each case that ‘we’ should try
‘our’ wrongs and their perpetrators, and that trial by some foreign or international court, even if it produces a warranted conviction and sentence, can be at best an inadequate substitute.
28
‘We’ should try the case not because we are contingently best placed to do so, but because it is our business in a way that it is not so especially the business of other states or bodies. Who then is this ‘we’? It is not a ‘we’ as large as humanity, or the realm of moral agents—for that would not explain these more local feelings. Nor is it a ‘we’ as limited as the direct victims of the crimes in question, or their families and friends: it is, I suggest, a ‘we’ consisting in all members of the political community within which the crimes were committed, who recognise the victims as fellow members whose wrongs they should share.
It is worth noting too that while the pragmatic account can say something both about the authority of international criminal tribunals, and about claims to universal jurisdiction over some crimes made by some legal systems, it cannot explain why the principles of nationality and of passive personality should seem plausible. As to international or universal jurisdiction, the founding statute of the International Criminal Court affirms ‘that the most serious crimes of concern to the international community as a whole must not go unpunished,
29
and claims to universal jurisdiction typically focus on crimes of which something similar could be said: 30 a pragmatic theorist could explain such provisions by arguing that international or universal jurisdiction is appropriate for crimes in relation to which, given their seriousness, the demand that their perpetrators be brought to justice is so insistent that it is worth making international provision for their punishment if the local courts cannot (or will not) carry out that task.
31 As to the principles of nationality and of passive personality, the former gives the national courts jurisdiction over crimes committed abroad by the state’s citizens, whilst the latter gives them jurisdiction over crimes committed abroad against the state’s citizens: 32
neither of these can be readily rationalised in terms of the efficient satisfaction of the demands of an impersonal and universal justice.
Other explanations of a Territoriality Principle might be offered which do not appeal to any rich notion of political community. It might be argued, for instance, that everyone living, permanently or temporarily, in a geographical area has an interest in the enforcement within that area of a legal system which criminalizes certain kinds of harmful wrongdoing, and that this grounds the jurisdiction of that system’s courts over crimes committed within that area.
The interests of everyone within that area are served by a criminal law that binds and protects them all; this gives the state in whose territory that area falls the authority to maintain such a system of law.
33
It is certainly true that we each have an interest in being protected against the kinds of wrong that a decent system of criminal law criminalizes; it is also true that, for many such wrongs, we have that interest whether we are living in a state of which we are members,
28 There are of course other reasons bearing on these examples: for instance arguments against trying Saddam
Hussein in Iraq that have to do with his chances of a fair trial; reasons for mistrusting the ICC having to do with its perceived political character. The Eichmann case is also worth considering in this context: should he ideally have been tried in Israel, or in Germany, or by an international court?
29 Rome Statute of the International Criminal Court, Preamble.
30 Eg Criminal Justice Act 1988, s. 134: torture committed or sanctioned by public officials is a crime triable in English courts, wherever and against whomever it is committed; applied in R v Bow Street Metropolitan
Stipendiary Magistrate ex p Pinochet Ugarte [2000] 1 AC 147.
31 Such a theorist might also find support in the ICC’s principle of complementarity—that that it can try only cases that have not been properly investigated by a state with jurisdiction (Rome Statute, art. 17).
32 See eg French Code Pénal , art 113.6-7; German Strafgesetzbuch , s 7.1-2, Sex Offenders Act 1997, s 7. See generally Hirst (n 24 above), ch 5.
33 See A Chehtman, ‘The Extraterritorial Scope of the Right to Punish’ (2010) 29 Law and Philosophy 127
(he argues against universal jurisdiction, and against the principles of nationality and passive personality).

10 or are temporary residents in or visitors to a foreign land.
34 But is this enough to make sense of a state’s peculiar jurisdiction over crimes committed within its territory?
Such an account separates the state, as the source and enforcer of criminal law, from the political community whose law (one might think) it should be, and of which the state should be the formal manifestation: the state has, apparently, just the same relationship to all those living within its territory. However, if we are to understand the criminal law not simply as a set of prohibitions, but as a practice through which wrongdoers are called to public account, we must be able to ground it in some kind of community—a ‘we’ who call them to account.
This ‘we’ requires not merely an aggregate of individual interests in such matters as security, but a collective interest that is ‘our’ interest.
35 A collective interest, however, requires more than a collection of people who happen to find themselves in the same geographical territory; it requires people who can see themselves as being engaged in a common enterprise of living not just alongside each other, but together .People who happen to be thrown together might form some such common enterprise (as they do, with greater or lesser success, in films about castaways), and the criminal law can strengthen such an enterprise: but it must presuppose an already existing ‘we’, an already existing (even if partly aspirational) community whose law it is. Nor can that community be simply a moral community to which all rational agents, or all human beings, belong.
36
The intelligibility of such an all-embracing community is crucial to the prospects of a cosmopolitan political theory, 37 and perhaps to the ambitions of the ICC, if we take the Preamble to the Rome Statute seriously.
38
But systems of domestic criminal law are the laws of smaller communities than that; and since the criminal law is part of the apparatus of the state, they belong to political rather than to purely moral communities: the criminal law’s community must be a polity.
That is why I have argued previously that we should appeal to citizenship as the basis of the community on which criminal law depends.
39
There are two stages to this argument. The first claim is that any system of criminal law requires a political community whose law it is: a
‘we’ whose business the criminal law declares certain kinds of wrong to be, to whom those who commit such wrongs must answer. That is the ‘we’ over whom the law primarily claims authority; and since the criminal law is an aspect of the state, the ‘we’ must be the members of the polity whose state it is. Furthermore, criminal law is an ongoing, not just a momentary, enterprise: it involves laws, not mere orders; institutions and procedures, not merely ad hoc arrangements. It is possible only within the framework of a larger political community, which embodies the constitutional structures that make law possible (and that are themselves made possible by law), and structures the form of life within which criminal law can operate.
40
This is not yet to say, however, that criminal law requires the kind of democratic polity that talk of citizens might connote: non-egalitarian, political communities have criminal laws.
A conception of criminal law as a law for citizens depends on a democratic political theory, to argue that a legitimate criminal law requires a political community whose members share the status of citizen; citizenship being understood roughly as equal, mutually respectful
34 Only ‘for many such wrongs’ because some criminal wrongs, notably those that threaten the longer term operations of the state, can plausibly be said to affect only members.
35 As Chehtman (n 32 above), eg at 134.
36 Compare Scanlon (n 18 above); On the difference between talk of rational agents and talk of human beings, see R Gaita, Good and Evil: An Absolute Conception (2nd ed; London: Routledge, 2004), ch 3.
37 See eg S Caney, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University Press,
2005); D Held, Cosmopolitanism: A Defence (Cambridge: Polity Press, 2003).
38 See at n 29 above; R A Duff, ‘Authority and Responsibility in International Criminal Law’, in S Besson and J Tasioulas (eds), Philosophy of International Law (Oxford: Oxford University Press, 2010).
39 See Duff ( n 5 above), ch 2.2.
40 On the importance of setting criminal law in its constitutional context, see Thorburn in this volume.

11 participation in the civic enterprise.
41 The nature of that civic enterprise, and the character and extent of its claims on citizens’ lives, is a matter for political deliberation. At one extreme lie ambitiously demanding kinds of communitarianism that make what liberals see as oppressively intrusive demands on citizens, and leave too small a ‘private’ realm in which individuals can pursue their own conceptions of the good, in the company of those with whom they choose to associate: religious communities that claim the bodies and souls of their members are extreme examples of this communitarian vision, or nightmare. At another extreme lies the kind of radical individualist liberalism that communitarian critics fear, which insists upon an extensive realm of ‘private’ life, and a minimal ‘public’ sphere. We need not engage in this debate here, however. All we need to note is that however minimal the public sphere of matters that concern all citizens is taken to be, any polity must have a public sphere, structured by its self-defining values. Those values include norms about how citizens should treat each other, which gives us the basis for an idea of public wrongs—of wrongdoing that violates the polity’s defining values; and this then gives us a basis for an idea of criminal law as a formal way of identifying and responding to such wrongs.
42
Public wrongs are our wrongs as citizens—wrongs in which we take a proper interest, to which we should collectively respond, for which we claim the right (and perhaps the duty) to call the perpetrator to answer to us. Some such wrongs are public in their material impact: if we ask who is wronged the answer is ‘the public’; this is true of, for instance, some wrongs of general endangerment and environmental damage; of wrongs that threaten public institutions; of frauds committed against the public purse. Others take individuals as their direct victims, but count as ‘our’ wrongs because they violate our public values, and because we share them with the victim: our concern for the victim as our fellow citizen makes them our business. So does our recognition of the wrongdoer as a fellow citizen: what is done by one of us, when it impinges on our shared values, is our business.
43
If a wrong is our business, we may, perhaps should, respond to it, and seek to call its perpetrator to account.
To avoid misunderstanding, I should make clear that the wrongfulness of a public wrong does not depend on its being public: public wrongs are, in this context, wrongs that concern us all as citizens. Sometimes, as I noted above, conduct is wrongful because of its impact on the public—because it attacks or threatens a public good, or an institution that is crucial to our civic life. Sometimes the wrongfulness of a public wrong lies partly in its civic character: the wrong consists, for instance, in failing to show a fellow citizen the respect or concern due to her as a fellow citizen. Often, however, what makes the conduct wrong is independent of its impact on a wider public, and it is wrong because that is not how one should treat anyone, fellow citizen or not. This is obviously true of familiar mala in se : what makes murder or rape wrong has to do with what is done to the direct victim; nor is it plausible to argue that what makes them criminalizable is some further feature to do with their effect on ‘the public’.
44 To
41 Such a theory is best articulated in republicanism: see eg R Dagger, Civic Virtues: Rights, Citizenship and
Republican Liberalism (Oxford: Oxford University Press, 1997), and in this volume; also RM Dworkin, A
Matter of Principle (Cambridge, Mass: Harvard University, 1985) ch 8, on the equal concern and respect that citizens owe each other.
42 But only a basis: see further RA Duff, ‘Responsibility, Restoration and Retribution’, in M Tonry (ed.),
Retributivism Has a Past: Has it a Future?
(Oxford: Oxford University Press, forthcoming).
43 That is what grounds the principles of nationality and passive personality (see at n. 32 above).
44 See further Marshall and Duff (n 7 above); Duff (n 5 above), ch 6.5. Contrast J Gardner and S Shute, ‘The
Wrongness of Rape’, in J Horder (ed), Oxford Essays in Jurisprudence , 4th Series (Oxford: Oxford
University Press, 2000) 193, arguing that although the moral wrongness of rape does not lie in its harmful effects, our reasons for criminalizing it do depend on the wider effects of failing to criminalize it; for an incisive critique, see J Stanton-Ife, ‘Horrific Crime’, in RA Duff, L Farmer, SE Marshall, M Renzo, V
Tadros (eds), The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010).

12 say that such wrongs are ‘public’ wrongs is, rather, to say that they are wrongs that concern all citizens, in virtue of their civic fellowship with the victim (and the offender). To identify a wrong as a public wrong in the context of a particular polity’s criminal law thus does not imply that it is not a wrong, or not so serious a wrong, when committed elsewhere or against someone who is not a citizen of the polity. In saying that a rape committed in England is a crime in English law for which the rapist must answer in an English court, whilst a rape committed in Poland is not a wrong in English law or a matter for the English courts,
45
we do not imply that the rape in Poland is not wrong, or less wrong, or wrong on different grounds.
Nor do we imply that it is not a wrong that matters to us as human beings, or as moral agents: it is, we can say, our moral or human business (though that raises the question of what we can do about it simply as human beings or moral agents), as a serious wrong committed against a fellow human being. What is at issue here, however, is what concerns us as citizens, and what concerns the criminal law of this particular polity; we cannot see a rape committed in Poland as a wrong committed within our civic enterprise as a polity or, therefore, as a wrong that concerns our criminal law.
We can put the core point here in the language of associative obligations.
46
The criminal law gives institutional form to a particular subset of what we might call secondary associative obligations: associative because they are obligations we owe to our fellow citizens in virtue of our shared membership of the polity; secondary because they concern our civic responses to breaches of the primary obligations that the criminal law presupposes—to commissions of the kinds of wrong with which the criminal law is concerned. As citizens, we have a special duty to attend to public wrongs committed within the polity: a duty to respond to such wrongs by calling the wrongdoer to public account, which we owe to both victim and wrongdoer; a duty to answer to our fellows for our own commissions of such wrongs, and to answer to any accusations of such wrongdoing that are reasonably brought against us.
I cannot develop this account of the relationship between citizenship and the criminal law here, though much more clearly needs to be said about citizenship, about the civic enterprise, and about how we can determine which kinds of wrong are to count as public, criminalizable, wrongs—the central issue of criminalization. Instead, I want to consider a set of objections to giving citizenship so central a role in our understanding of criminal law: objections that focus on the exclusionary potential of the idea of citizenship.
3. Citizens and Non-citizens
One question about the ideas of citizenship and political community as I have used them here is whether we can see the societies in which most of us live as genuine political communities, whose citizens share a commitment to a substantial set of values that define a civic enterprise in which they see themselves as mutually engaged. All I can say on that question here is that if we do not live in what can count as political communities, the legitimacy of criminal law is radically undermined, as is the legitimacy of much else about the state. However, if we bear in mind that the reality of a political community can be a matter of aspiration as much as of achieved fact; and that a political community can still be a relatively thin one, structured by a range of liberal values that leave extensive room for other kinds of community free from the
45 Unless we accept a principle of nationality or of passive personality (see at n 32 above), and count it as our business if it is committed by or against an English citizen: but the view offered here, while it shows how we can make sense of those principles, does not commit us to adopting them.
46 See RM Dworkin, Law’s Empire (London: Fontana, 1986) ch 6; J Horton ‘In Defense of Associative
Political Obligations’ (2006) 54 Political Studies 427 and (2007) 55 Political Studies 19.

13 demands of the polity and its civic enterprise: we might be less pessimistic. The questions I want to focus on, however, concern the limits of citizenship.
47
Citizenship has both inclusionary and exclusionary dimensions. In a generously minded polity, citizenship is inclusive: all those born within the polity are citizens; incomers can gain citizenship relatively easily. Even then citizenship is also exclusionary: absent a cosmopolitan world order, when there are citizens there are also non-citizens, who are excluded from such rights and benefits as citizenship brings. Such exclusion is not always disturbing. It is no cause for concern that state A does not grant the benefits of citizenship to people living in stable and prosperous states elsewhere; nor that it does not grant citizenship to those living elsewhere, under more adverse conditions, who do not seek entry to it—though there is much else that it should do to assist. Nor is it cause for concern that those who visit A as tourists, or to do business, are not eligible for full citizenship, though we must ask about their status. But focusing on citizenship raises at least two worries about the treatment of non-citizens.
One worry concerns those who are not, and do not seek to become, citizens, but who visit the state for shorter or longer periods. How will a criminal law for citizens treat such visitors?
This worry is not a deep one. Polities can be hostile, disrespectful, uncaring towards foreign visitors, denying them the protections that citizens enjoy; but that is not an implication of a focus on citizenship. Many social groups or institutions operate with a conception of guests or visitors: the group (a family; a village; a group of cohabiting friends; a university) consists, at its core, in its members; but it welcomes visitors, whom it treats with respect and concern.
They do not play the role that members play in determining the group’s activities (they do not take decision-making roles in political deliberation or its analogue); but decent groups accord visitors the kinds of support and protection that their members enjoy. There is much more to say about the status of guest or visitor, and what it can involve; but the crucial point is that in any decent polity, guests and visitors are protected by its criminal law in the same way as its citizens.
More precisely, they are protected and bound by the criminal law. As to protection, the key issue is not whether conduct towards them that the local law defines as criminal when done to a citizen counts as wrong. There might be some wrongs that can only be committed against fellow citizens: electoral misconduct, for instance, or failing to pay one’s taxes. Most criminal wrongs, however, are wrongs whether committed by, or against, citizens or noncitizens: the criminal law, as we saw, presupposes wrongfulness rather than creating it. The more important point concerns responses to wrongdoing: a decent polity will count and treat wrongs committed within its borders against visitors as no less public, no less wrongful, than wrongs committed against citizens. Not only should we not wrong guests: if a guest in our home is wronged, that is our business; and whilst there are dangers that citizens will not take wrongs against visitors as seriously as they take wrongs against citizens (‘She was only a tourist’), members of a civilized polity will not discriminate in this way.
48
That is true whether the guest is attacked by a citizen or by another visitor, which brings us to other side of the coin: that guests are both protected and bound. The fact that the person
I attack is a visitor, rather than a citizen, does not exempt me from criminal prosecution; nor does the fact that I am myself a visitor who attacks another visitor. There are two versions of this point, relevant to different types of crime. On one version, visitors are expected to abide by the local rules (‘When in Rome ...’), and may be called to account by their hosts if they do not: whatever kinds of conduct might be permissible at home (as to which the local law is
47 I am especially grateful to Lucia Zedner for forcing me to think more seriously about these issues.
48 Suppose the guest is uninvited—an illegal immigrant? One question that I cannot pursue here concerns the conditions under which a polity should admit would-be entrants either to residence or to citizenship (how open its doors should be); but for so long as they are in the polity they must be treated with respect.

14 properly silent), when they are here they should obey ‘our’ rules. This version is appropriate in some contexts. The point is not merely that local conventions often differ—for instance that here we drive on the left: in such cases the wrong itself, whether committed by a guest or by a citizen, consists in failure to respect a justified convention. Rather, it is that sometimes we must recognise the fact of reasonable disagreement (especially given different cultural backgrounds that may alter the meanings of actions) about values that inform our criminal law—for instance, about what counts as offensive conduct, or as dishonesty. In such cases we say to visitors that they should eschew such conduct while they are here, not (just) because it is wrong, but out of respect for the local values and attitudes.
49
In other cases, however, our claim should be more robust: such conduct is wrong, wherever it is committed, although it becomes our business as a polity (the business of our criminal law) only when it is committed in our territory. We should not say to a wife-beater, for instance, that he ought to refrain from beating his wife whilst he is here out of respect for local laws; we should say that wifebeating is a wrong that he ought not to commit anywhere, and for which we will call him to answer if he commits it here. Sometimes we criticise guests for failing to respect local rules or sensibilities; sometimes we criticise them for committing wrongs in our home, when the significance of the location is not that it makes wrongful what might not have been wrong elsewhere, but that it makes our business a wrong that would not have been our business had it been committed elsewhere.
An account that emphasises citizenship faces deeper worries in other kinds of case, which we can approach via Jakobs’ notorious distinction between Bürgerstrafrecht (citizen criminal law) and Feindstrafrecht (enemy criminal law).
50 Bürgerstrafrecht
is for citizens. It respects the presumption of innocence, not only as a principle governing the allocation of burdens of proof in the trial, but as a broader principle of trust: we should presume each other to be ‘free of harmful intentions’, 51
and trust each other to refrain from future crimes. It treats offenders as members of the polity, whose trials and punishments must respect that status. By contrast,
Feindstrafrecht abandons criminal law as I have characterised it: it treats those on whom it is imposed not as citizens, but as actual or potential enemies; it seeks to control them for the sake of security, rather than to address them as members of the normative community.
Such a distinction is certainly drawn in contemporary penal theory, rhetoric and practice.
In penal theory, some argue that those who commit crimes lose their standing as citizens, so that we can treat them in ways in which we could not treat citizens, and deny them the respect and concern that we owe to citizens;
52
such a view finds formal legal expression in the loss of the right to vote (a central aspect of citizenship) suffered during their incarceration by those serving prison terms in Britain, 53 and for life by convicted felons in some American states.
54
49 Another question that I cannot pursue here is whether we should sometimes say something analogous to a citizen who reasonably dissents from the values expressed in the law: should we, for instance, say to one who believes that certain kinds of euthanasia should be legally permissible, not that she ought to accept the law’s declaration that they are wrong, but that though her view is reasonable, she should respect the public view as expressed in the law? (In both cases we must of course ask whether we could so revise the law that reasonable dissenters could act as they think right without facing criminal liability.)
50 See eg G Jakobs: ‘Bürgerstrafrecht und Feindstrafrecht’ (2004) HRRS 88 (http://www.hrr-strafrecht.de/ hrr/archiv/04-03/index.php3?seite=6). For critical discussion, see C G-J Díez, ‘Enemy Combatants Versus
Enemy Criminal Law’ (2008) 11 New Criminal Law Review 529; also L Zedner, ‘Security, the State, and the Citizen: the Changing Architecture of Crime Control’ (2010) 13 New Criminal Law Review 379.
51 See J Floud and W Young, Dangerousness and Criminal Justice (London: Heinemann, 1981), 44.
52 eg AI Goldman, ‘Toward a New Theory of Punishment’ (1982) 1 Law and Philosophy 57; CW Morris,
‘Punishment and Loss of Moral Standing’ (1991) 21 Canadian Journal of Philosophy 53. For criticism, see
Duff, Punishment, Communication and Community (New York: Oxford University Press, 2001), 14-16.
53 Despite the (very qualified) ECtHR ruling in Hirst v UK (2006) 42 EHRR 41.
54 See L Wacquant, ‘Deadly Symbiosis’ (2001) 3 Punishment & Society 95.

15
In penal rhetoric, we are all too familiar with talk of a ‘war on’ drugs, or crime, or terrorism, which portrays the disfavoured group of (actual or potential) offenders as outsiders—a ‘them’ against whom the law-abiding ‘we’ must be protected. In penal practice the distinction is seen in, for instance, the provisions for ‘imprisonment for public protection’ in England, 55
and the
‘three strikes’ provisions in the USA; 56
in provisions for those suspected of being involved in terrorist activities, in particular provisions for detention, or other kinds of restriction, without a conviction;
57
and in a wide range of other restrictive measures that are more concerned with preventing future crime than with responding appropriately to past crimes.
58 So is it a sound objection to a citizenship-based account of criminal law that it allows, or even encourages, such discrimination between ‘citizens’ and ‘enemies’?
The answer is a firm but qualified ‘No’. The answer is firm, because the criminal law can and should be a criminal law for all citizens—including actual and suspected offenders: as I argued in s. 2, the criminal law must address us all, including the many of us who are actual or potential offenders, as members of the normative community whose law it is. It must take our public wrongdoing seriously, holding us to account for it, and thus also aiming to repair our civic relationships with our fellow citizens: but it holds us to account precisely as citizens whose full membership of the polity is not in doubt—which is why the right to vote in prison is symbolically important. Such a conception of those who commit crimes is challenging: it is tempting for self-defined ‘law-abiding citizens’ to regard offenders as less than (full) citizens.
But that is to say only, and unsurprisingly, that political community is challenging. Nor is the communitarian approach that I have taken peculiarly vulnerable here: the aspiration to secure respect for the rights (human, moral, political, legal) of offenders, or to treat them still as full parties to the social contract, is no less challenging. The problem of exclusion, whether from citizenship, from the realm of rights, or from the social contract, need not be a problem for normative theory; it is a moral problem for our attitudes and practices.
59
The firm ‘No’ offered in the previous paragraph must also, however, be qualified, since two kinds of case put it under pressure: but such cases must be problematic for any normative theory of criminal law, and therefore do not cast doubt on the account offered here.
The first kind of case concerns those who engage persistently in crimes of a character and seriousness that deny the basic values on which the civic enterprise depends (or, others might say, deny the most basic terms of the social contract); crimes so persistent that they constitute a criminal career, rather than a series of individual wrongs. Should we insist that such people must still be recognised and treated as full members of the normative community—that such membership is wholly unconditional? Or does there come a point at which we may, or must, say that whilst we still owe them the respect and concern due to any human being, the chance
55 See Criminal Justice Act 2003, ss 224-36; Criminal Justice and Immigration Act 208, ss 13-20; P Ramsay,
‘A Political Theory of Imprisonment for Public Protection’, in Tonry (n 42 above).
56 See eg California Penal Code §§ 667, 1170.12; F Zimring, G Hawkins, and S Kamin, Punishment and
Democracy: Three Strikes and You’re Out in California (Oxford: Oxford University Press, 2001).
57 L Zedner, ‘Securing Liberty in the face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of
Law and Society 507; and see also V Tadros, ‘Justice and Terrorism’ (2007) 10 New Criminal Law Review
658.
58 See generally Ashworth and Zedner in this volume, and ‘Defending the Criminal Law: Reflections on the
Changing Character of Crime, Procedure, and Sanctions’ (2008) 2 Criminal Law and Philosophy 21.
59 For an argument to similar conclusions from contractualist premises, see C Brettschneider, ‘The Rights of the Guilty: Punishment and Political Legitimacy’ (2007) 35 Political Theory 175; see also RA Duff, ‘A
Criminal Law for Citizens’ (2010) 14 Theoretical Criminology 293. A citizenship-based approach can also explain why we should worry about punishing those who have suffered seriously unjust disadvantages (see
Green in this volume): our collective failure to treat them as fellow citizens undermines our standing to call them to account (see V Tadros, ‘Poverty and Criminal Responsibility’ (2009) 43 Journal of Value Inquiry
391; RA Duff, ‘Blame, Moral Standing and the Legitimacy of the Criminal Trial’ (2010) 23 Ratio 1).

16 to restore themselves to full citizenship by showing that they can again be trusted, and help in achieving this, we cannot now treat them as full members? But we cannot tackle the question in such abstract terms: we must ask what is at stake in retaining or losing ‘full citizenship’ in this context—and bear in mind that what is at stake need not be ‘citizenship’ as a unitary or seamless status, but more particular aspects of membership of the polity.
Some of those aspects, we should surely say, are not alienable or conditional, for instance the rights to such benefits of citizenship as education, health care and social security. Others might be argued over—for instance the right to vote or otherwise participate in the political process: just because the right to vote is so important a symbol of citizenship, should we say to the serious career criminal ‘Given your persistent and flagrant violation of the bonds of the polity, you can now claim no right to help determine the direction of its civic life’; or should we insist that we must still give this symbolic expression to the hope that he will rehabilitate himself? The most obviously problematic aspects, however, concern the kinds of liberty and privacy that citizens normally have a right to expect, and the associated right to be restored to full liberty, and to be free from intrusive supervision, once one has served an appropriate and determinate punishment for one’s crimes. An essential feature of a liberal penal system is that punishment is finite and limited: what the offender is to undergo is determined in advance by a sentencing process structured by the question of what constitutes an appropriate response to his crime. His sentence might involve restrictions on his liberty, including imprisonment, and forms of supervision that would normally be illegitimate;
60
but once it is over, he is free from those restrictions and from such supervision, without having to prove that he will refrain from future crimes; having served his sentence, he is once again entitled to the broad presumption of innocence.
61
Provisions for ‘dangerous’ persistent offenders that allow for their indefinite or life-long detention abandon this aspect of liberal criminal law,
62
and imply that a persistent offender can lose his right to that presumption—not just for a limited time, but indefinitely or for life. Those provisions are certainly far too broad: they deprive far too many offenders of their civic standing. But should we recognise that there may be what we must hope is a very small class of determined, persistent and dangerous offenders whose criminal careers do disqualify them from that presumption: offenders whom, given their history of unrepentantly flagrant criminality, we can no longer be expected to trust as fellow citizens?
Were we to go down this route, much more work would of course need to be done on the conditions given which, and the procedures through which, such exceptional measures could be imposed; on the form that such measures could properly take; on the procedures through which they could be lifted. That last point is crucial: even if a sufficiently persistent career of sufficiently serious criminality could justify us in turning the presumption of innocence into a presumption of criminality, that presumption would have to be rebuttable; we might place on the offender the onus of offering sufficient evidence that he has changed his ways, but it must be an onus that he could discharge. We might then find that we cannot specify procedures for such measures that would be adequately safe and reliable, but the question here is whether we should even consider them in principle. I remain uncertain about how to answer that question: about whether the civic presumption that those who have undergone their punishment can be trusted, as any citizen is trusted, to refrain from future crime (a presumption that is central to a liberal republican criminal law) should be irrebuttable:
63
but it is one that faces any penal theory, and any polity that takes citizenship seriously.
60 On the role of different modes of punishment in a penal system that takes citizenship seriously, see Duff,
(n. 52 above), ch 4.2.
61 See at n 51 above.
62 See at nn 55-6 above.
63 See Duff (n 52 above), ch 4.4.

17
The second kind of problem case concerns those involved in terrorist activities—or, more precisely, given the difficulty of defining ‘terrorism’, those involved in violence that aims to destabilise the polity.
64
Might we have to say that such terrorists deny their membership of the polity that they attack: whether or not they are, formally, citizens of that community, they make themselves in substance enemies engaged in a war against it? This would not exclude them from the polity on the basis of our own view of their activities: it would accept at face the value the denial of membership that their actions express; they act and should be seen as enemy soldiers engaged in covert military operations. If we are fighting a war, the criminal law withdraws somewhat: we do not charge enemy soldiers who kill in action with murder in a criminal court. We try to thwart them, if necessary using fatal military force against them; if we capture them, we detain them as prisoners of war, while the war lasts. But such detention is not punishment: it does not depend on criminal conviction, or express condemnation, or aim to bring the detainee to recognise his wrongdoing; it is a preventive measure justified by the detainee’s status as an enemy soldier.
65
Enemy soldiers are not outside the law. They are both protected and bound by the laws of war: our conduct towards them, as soldiers or as prisoners of war, is governed by the laws of war; their conduct is subject to the demands of those laws, both ad bellum and in bello ; they can be charged with war crimes if they violate them. This creates an obvious problem for this perspective on terrorist activities: they do not fit into the orthodox framework of the laws of warfare. There is no formal declaration of war between states; fighters do not wear uniforms that mark them as combatants (and activate the protections that combatants can claim); and if they attack civilian targets, they violate the rules of jus in bello . Furthermore, whatever can be said about terrorists who attack from outside the polity, those who attack from within, at least if they are formally citizens, cannot be so readily portrayed as enemy soldiers: they look more like traitors, who under the laws of war are not entitled to be treated as enemy soldiers.
However, it could be argued that the phenomena of modern terrorism require us to rethink our existing categories: neither the framework of ‘normal’ criminal law, nor that of warfare as classically conceived, can accommodate modern terrorism; we must either articulate a new normative category, or develop our existing categories.
66
If we should see those engaged in terrorism within the normative framework of warfare rather than of criminal law, we should not expect a liberal criminal law to deal with them. But there are two reasons for not going down this route. One is that insofar as terrorism involves attacks on civilian targets that must count as innocent, those who commit such attacks should have to answer for them as wrongs, and such answering is properly done in a criminal court
(although there is a case for looking to international rather than domestic criminal courts to try serious terrorist cases). The other reason is that, absent proof of terrorist activity of a kind that could ground a criminal conviction, our question must concern the measures that we may use not against terrorists, but against suspected terrorists. Enemy soldiers in classical warfare wear their status visibly as a uniform: although under the conditions of modern warfare it is often difficult to distinguish combatants from non-combatants,
67
we know how to recognise an enemy soldier. In terrorism-related cases that come before our courts, however, in which
64 Compare S Scheffler, ‘Is Terrorism Morally Distinctive?’ (2006) 14 Journal of Political Philosophy 1, at 5.
65 On the issues raised by such detention, see A Walen, ‘A Unified Theory of Detention, with Application to
Preventive Detention for Suspected Terrorists’, forthcoming in (2011) 70 Maryland Law Review .
66 See P Gilbert, New Terror, New Wars (Edinburgh: Edinburgh University Press, 2003). Others might argue that the terrorist is neither criminal nor soldier, but an outlaw, hostis humani generis (see Blackstone,
Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-9), iv.5); against this view, we should insist that terrorists are fellow human beings who must be protected as well as bound by law.
67 Which is why there are serious grounds to doubt whether many kinds of warfare can be compatible with the classical jus in bello protections for non-combatants.

18 special preventive measures might be imposed, 68 those who are liable to these modes of legal coercion appear not as proven terrorists, but as people suspected of involvement in terrorism who might be innocent citizens. They are therefore entitled to the presumption of innocence, and to a proper criminal process; any question of special, preventive measures can arise only after they have been duly convicted, of an offence that can properly be said to amount to a determined attack on the polity itself. This is not to deny that criminal law can come under pressure in times of emergency, or that measures which subvert or bypass the requirements of liberal criminal law might then be qualifiedly justified. I cannot discuss this possibility now; 69 the point to note here is that it does not reveal a weakness in a citizenship-based account of criminal law, since it is not that account of law that invites or encourages us to exclude some people from the law’s protection.
I have argued that we can best understand the authority and claims of criminal law in a liberal polity by understanding it as a law for citizens: a law to which citizens subject each other and themselves, under which they call public wrongdoers to account for what they have done, and are themselves ready to answer to their fellows. I have also argued that such an account need not have the kinds of exclusionary effect that worry some critics—but that it does highlight two problematic kinds of case in which it is not clear that a citizens’ criminal law remains viable.
68 See at n 57 above. The key point here is that the procedures through which such measures are imposed do not involve proof of involvement in terrorism of a kind that a criminal conviction would require.
69 See Zedner (n 57 above); Tadros (n 57 above); J Waldron, ‘Security and Liberty: The Image of Balance’
(2003) 11 Journal of Political Philosophy 191; F Tanguay-Renaud, ‘Individual Emergencies and the Rule of Criminal Law’ CLPE Research Paper No. 37/2008; http://ssrn.com/abstract=1292805.