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‘Who’s Still Standing?’ A Comment on Antony Duff’s Preconditions of Criminal Liability

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Chapter Summary

Antony Duff has argued that an important precondition of criminal liability is that the state has the moral standing to call the offender to account. Conditions of severe social injustice, if allowed or perpetuated by the state, can undermine this standing. Duff's argument appeals to the ordinary idea that a person's own behaviour can sometimes negate his standing to call others to account. It is argued that this is an important issue, but that the analogy with individual standing is problematic. Duff's account of standing needs to address two interconnected issues: first, when and in what way the state can lose it's standing to call offenders to account, and second, over what range of offences. Antony Duff has developed and defended an account of punishment as moral communication. Ideally, the communication induces penitential repentance in the offender, and penal hard treatment provides a vehicle for that penance.

Keywords: Antony Duff; criminal liability; penal hard treatment; penitential repentance



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