Outsiders’ Responsibility to Answer for Crime

• Author: Kenneth S. Gallant
• Published date: 01 September 2019
• Date: 01 September 2019
• DOI: http://doi.org/10.1111/raju.12249

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd

Ratio Juris. Vol. 32 No. 3 September 2019 (256–277)

Outsiders’ Responsibility

to Answer for Crime

KENNETH S. GALLANT*

Abstract. R. A. Duff has r evived the tradition of “answerability” for cri me. In this philosophi-

cal and jurispr udential tradition, a per son is answerable to the cr iminal law of a state a nd

the process of that state’s courts on ly if there is some appropriate re lationship betwee n the

state and the person. D uff’s great contribution has been to develop the idea of account ability

of persons to a state or other pol ity as a philosophical notion which, he a rgues, underlies all

just implementations of cr iminal law. Duff has c entered his views ar ound the relationsh ip

between the citi zen and the polity (in today’s world, the state) to which the citi zen belongs. His

focus has been on i nsiders, rather than outsiders.

This article arg ues that, in the current world, the relat ionship among cocitize ns, outsiders, and

the state is based in pa rt on the moral idea that th e state exists to protect c itizens from ev il

acts, specifica lly those that we call public and crim inal wrongs, wherever the acts originate.

Outsiders understand t his, and understand that states ot her than their own use cr iminal law

to protect their cit izens.

Duff’s writings cont ain an idea which turn s out to be very useful in cases of outs ide acts, even

though he does not apply it directly to t hem. Some states or other entities may have only an

incomplete relationsh ip with an accused pe rson (compared with the relat ionship of citizen

and state), but nonetheless may have the moral and politic al authority to try her for cri me. This

paper extends this not ion to show that such incomplete rel ationships exist i n a great many

common cases of outsiders (nonciti zens who act outside the territory of a state) who commit

crime. These rel ationships support crimi nal prosecution of outsiders, so long as we adm it that

protection of person s from crime is a legitimate goa l of the criminal law.

1. To Whom Must We Answer for Crime?

R. A. Duff, in Answering for Crime and other works (Du ff 2007, 2011, 2012, 2014, 2015,

and other books and papers), has revived the tradition of “answerability” for cri me.

* This work is supported by the Fu lbright program, by the Univers ity of Arkansas at Litt le

Rock Bowen School of Law, and by the Research Cou ncil of Norway through its Ce ntres of

Excellence fundi ng scheme, Project No. 223274. It was first presented at the Pluricour ts work-

shop Answering for International Crime s, 3–4 July 2017, Oslo, Norway. I thank the organ izers and

participants for com ments and criticisms rec eived there. I also thank Profe ssor R. A. Duff and

an anonymous reviewer for com ments and criticisms on an ea rlier version of this paper. This

paper was substantial ly complete before Prof. Duff’s new book, The Re alm of Criminal Law

(Duff 2018), became available.

257

Ratio Juris, Vol. 32, No. 3 © 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd

Outsiders’ Responsibility

In this philos ophical and jurisprudentia l tradition, a person is an swerable to the

crimina l law of a state and the process of that state’s courts only if there is some

appropriate relationship between the state a nd the person. This t radition spans

legal cultures from a round the world (for material f rom common law, civil law, and

Islamic law traditions, see Don nedieu de Vabres 1922, 68–80, 93ff.; Khadduri 1955,

171–3; Maydani 1955, 223; Moore 1887, 124–5; and von Bar 1883, 16–20). Duff’s great

contribution has been to develop the idea of accountability of pe rsons to a state or

other polity as a philosophica l notion which, he argues, underlies all just implemen-

tations of crimi nal law (Duff 2011).

For Duff, an appropriate “normatively laden” relation of person to “polity”

(meaning a politically organ ized group of humans, in today’s world usually defined

by the entities we call “states”) is necessary to en sure that it is the business of t he

polity to call the person to accou nt for the par ticular crime alleged (Duff 2006, 3– 4;

2007; 2012; see Moore 1887, 124–6). A somewhat wider definition of the permissible

relationships than t hat argued by Duff has be come a dominant way of think ing

about criminal ju risdiction: There must be a n appropriate connection between t he

state claiming jur isdiction and the actor or the event involved (Brownlie 2008, 300ff.;

Mann 1964, 9, 43–51; 1984).

In many common insta nces of transnational c rime, a connection bet ween the

state and an event, such as a crimi nal result caused by an outside actor, justifies the

attribution of a relationship bet ween an outside actor and a state. That relationship

is one which justifie s a state in calling the actor to answer for the al leged crime. This

conclusion requires a justi fication for expanding the “answerability” of a person for

crime to relationships not con sidered by Duff’s work to date.

This artic le argues that, in the current world, the relationship among co- citizens,

outsiders, and the state is based in part on t he moral idea that the state exists to

protect citizens f rom evil acts, specifica lly those that we call public and cr iminal

wrongs, wherever the acts originate. Outsiders understa nd this, and understa nd

that states other than t heir own act to protect their citizen s. In some important cases,

this relationsh ip strengthens the normative basis for imposing c riminal law on non-

citizens who act outside the lawmak ing state.

To act as a critique of criminal law as it exist s, a philosophy must account for the

protective purpose, show that this pu rpose is appropriate (or not) for implemen-

tation through crim inal law as it exists, or demonstrate th at this purpose i s not a

morally supportable reason for any crimi nal law as we understand it. Duff ’s writ-

ings contain an idea which t urns out to be very useful in cases of outside acts, even

though he does not apply it directly to them. Some states or other entit ies may have

only an imperfect or deficie nt relationship with an accused person, but nonetheless

may have the moral and political authority to try her for cr ime (Duff 2012, 21). This

paper extends this notion to show that such i mperfect relationships exist in certai n

cases of outsiders (noncitizens who act outside the territory of a state), especially if

we admit that protection of persons fr om crime is a legitimate goal of t he criminal

la w.

2. R. A. Du ff and the Relationality of Criminal L aw

In building hi s notion of what sort of entity may require one to an swer for viola-

tions of the crim inal law, Duff begins with noncr iminal wr ongs that one might do