Other concerns about mixed views are pragmatic (Duff, 2010a). Since criminal misconduct will persist in everything we do, the preventive function sets an insatiable goal for the criminal law. Legislators who pursue this objective risk depriving us of a criminal law that fulfills its other functions. Consider the curial view again. It is plausible that we have reason to answer for injustices such as theft and fraud in criminal court, but no reason to consider every interaction with property or any misleading statements we profit. If the accused are to be held accountable for their wrongdoing, they must be criminalized. To criminalize trivialities – for preventive purposes – is to deprive criminal proceedings of their intrinsic value (Duff 2010b). There is no doubt that these are important concerns. But they do not contribute to the fact that we should reject a mixed point of view. At best, they show that legislators should not consider prevention as part of their mission. As we have already seen, this conclusion does not demonstrate that prevention is not part of the positive arguments in criminal law. And it may be too strong anyway.

Legislators who exclude prevention from their mandate may refuse to create crimes that would prevent serious harm. The cost of refusing to create these crimes could be higher than the cost of holding people accountable for trivialities, and this could be the case even if other prevention methods are considered. If this were the case, the preventive function of criminal law should be part of the legislative mandate: it is a function that the legislator should effectively fulfil. Given the resources it consumes and the damage it causes to people`s lives, it is far from clear that we are entitled to criminal law. If we do not want to be abolitionist, criminal law must be able to realize a value that gives us a sufficient reason to retain it. To present this value is to offer a general justification for the criminal law. Obviously, the functions of the criminal law tell us something about what that might be. If the punitive point of view is correct, the value of the criminal law is to impose a justified sentence. If the curial point of view is correct, this value is (in part) that people offer answers that they rightly offer. If the preventive point of view is correct, it is to prevent criminal injustice.

However, these views do not tell us what the real value of performing each function is. The punitive point of view tells us nothing about what justifies a criminal sanction. The Curia`s view tells us nothing about the importance of holding people accountable in criminal courts. The preventive perspective tells us nothing about the value of crime prevention. A general justification of the criminal law fills this explanatory gap. One of the questions is whether (IP) has an impact on criminal proceedings that go beyond criminal proceedings. On the one hand, (PI) is only a standard that regulates the burden of proof and the level of taking evidence at the main hearing. On the other hand, (IP) is a bit broader: it`s a standard that tells law enforcement officers – and perhaps the rest of us – how to interact with others, including those suspected of a crime (Stewart 2014, Duff 2013b). This standard, of course, has an impact on the timing of court proceedings. But its implications extend both backwards and forwards from that point on. They go back to decisions about whether offenders should be arrested, prosecuted or imprisoned (Ashworth, 2006, 249; Duff, 2013b, pp.

180-185; Stewart, 2014, p. 414). And they extend both to decisions on the degree of punishment (Tomlin 2014a) and to the appropriate collateral consequences of conviction and punishment (Duff 2013b, 185-192). Congress codified federal criminal law and criminal procedure in Title 18 of the United States Code with sections 1 through 2725, which deal with crime. Title 18 refers to various behaviors as federal crimes, such as arson, use of chemical weapons, counterfeiting and tampering, embezzlement, espionage, genocide, and kidnapping. These laws generally prescribe an appropriate maximum penalty for a convicted person. For other federal regulations, see 28 C.F.R. Two points emerge from these remarks.

The first is that the familiar explanation of the distinction between justification and apology should be rejected. The second is that a two-part classification of criminal defence obscures the distinctions we are right to make. Some respond by distinguishing denial of responsibility (such as insanity) from excuses (such as coercion) and distinguishing between the two and justifications (such as self-defense and necessity). Apologies and justifications, thus understood, are both claims of responsibility and denials of guilt. Justified actors have undefeated reasons for their actions. Excused actors meet reasonable expectations, although such reasons are lacking (Gardner 2007, 91-139; Simester, 2012, pp. 99-108). While this tripartite classification is an improvement, some argue that other distinctions should be made (Duff 2007, 263-298; Simester, 2012). The number (or should be) of criminal defence categories is a topic for future work. With some exceptions, the building blocks of our paradigm are open to interpretation.

Consider, for example, the need for causality. Is the conclusion that (D) caused (V`s) death a physical fact – something that, in Hume`s well-known formulation, is part of the cement of the universe? Or are the rules of causality – at least in criminal law – inferior to moral judgments about the fair attribution of responsibility? Is the truth perhaps somewhere in between? (Hart and Honoré, 1959; Moore, 2009b; Simester, 2017). The criminal responsibility of many – and the penalties to which they face – revolves around our answers to these questions. For more information on criminal law, see this article from the Florida State University Law Review, this article from the Harvard Law Review, and this article from the Boston College International and Comparative Law Review. To see the second point, consider gun ownership. Possession of a weapon is not harmful in itself. And many own firearms without risking undue harm. If you advocate (PS), you must either weaken the principle of your choice or accept that gun ownership cannot be criminalized. If you approve (HPP), things are different. What matters is not the effect of each individual case of gun ownership, but the effect of criminalizing all of them: while criminalizing possession prevents harm that would otherwise not be avoided – and at a disproportionate price – the fact that some owners own firearms safely is incidental. Whether (HCP) is achieved or not, (HPP) is.

Whether or not mens rea is necessary to give rise to criminal liability, it is rarely argued that it should be sufficient. The widespread belief that we should not tolerate thought crimes leads most authors to argue that there should be an actus reus element in every crime. Paradigmatically, this element is only fulfilled if (D) acts in a way that causes an outcome, such as death or property damage or fear of violence. Of course, this paradigm allows for a number of exceptions. In addition to individual crimes such as attempts or conspiracy, most criminal justice systems provide for liability for certain omissions. Imagine (D) seeing (V) drown in a shallow pond and decides to do nothing. There is no previous connection between (D) and (V). If the pond is in London, (D) does not commit a crime.

Move the drama to Paris and we ourselves have a crime. As this example shows, academia and legal systems still disagree on the positive obligations that criminal law should impose (Alexander, 2002; Ashworth, 2015). Only if (2(`)) is true, we never control the results. Unfortunately, (2(`)) has unpleasant effects. Uncontrolled factors don`t just influence our success. They are also related to whether we try, the choices we make, and the character traits that influence our choices. (2(`)) implies that we are never responsible for any of these things – our successes, our efforts, our choices, or our character. Taken to its logical conclusion, it implies that we are never to blame for anything (Nagel 1979; Moore, 1997, pp. 233-246). If, as most people believe, we are sometimes guilty of what we do, (2(`)) must be wrong.

We may add that (3) radically underestimates the conclusion of the argument presented above. Combined with argument (C), this argument does not mean that we should not be criminally responsible for the results. This implies that no one should ever be criminally responsible. One can imagine a world in which the law prevails – in which people uniformly refrain from criminal behaviour. Obviously, this is not the world we live in. Imagine (D) is about to (phi). If (phi)ing is a criminal offence, reasonable force may legitimately be used to prevent (D) (phi)ing. Police and individuals have the power to arrest and appropriate force can legitimately be used to make arrests effective.