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Essays in Criminal Law in Honour of Sir Gerald Gordon$
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James Chalmers and Fiona Leverick

Print publication date: 2010

Print ISBN-13: 9780748640706

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640706.001.0001

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Public and Private Wrongs

Public and Private Wrongs

Chapter:
(p.70) 5 Public and Private Wrongs
Source:
Essays in Criminal Law in Honour of Sir Gerald Gordon
Author(s):

R A Duff

S E Marshall

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748640706.003.0016

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

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