Chapter

Public and Private Wrongs

R A Duff and S E Marshall

in Essays in Criminal Law in Honour of Sir Gerald Gordon

Published by Edinburgh University Press

Published in print October 2010 | ISBN: 9780748640706
Published online March 2012 | e-ISBN: 9780748651450 | DOI: http://dx.doi.org/10.3366/edinburgh/9780748640706.003.0016
Public and Private Wrongs

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Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory.

Keywords: criminal law; crime; prosecution; criminal trial; public wrong; liberal communitarianism; liberal theory

Chapter.  7665 words. 

Subjects: Criminal Law

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