Chapter

Perversions and Subversions of Criminal Law

RA Duff

in The Boundaries of the Criminal Law

Published in print November 2010 | ISBN: 9780199600557
Published online September 2011 | e-ISBN: 9780191729171 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199600557.003.0004

Series: Criminalization

Perversions and Subversions of Criminal Law

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This chapter is concerned with the clash between ideal theory and actual practice. It takes as its starting point three aspects of English criminal law that appear inconsistent with a plausible normative theory of criminal law; these are discussed in Part II of this chapter. From the perspective of such an ideal theory, such provisions count as perversions or subversions of criminal law: but can we sustain that ideal point of view as anything more than an ‘academic’ (in its pejorative sense) exercise? That is the topic of Part III. The chapter asks: can normative theorists insist on the authority of ideal theory? It is argued that we must condemn and seek to abolish such provisions; or, it is asked, should they recognize that, given the changing world in which the criminal law must operate, some such developments are practically and morally inevitable, and that theory must be adapted to make room for them? As a necessary prelude to that discussion, the chapter briefly sketches the normative theory on which the discussion relies on.

Keywords: ideal theory; legal practice; English criminal law; normative theory; actual practice

Chapter.  12322 words. 

Subjects: Criminal Law

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