Duff, R. A. "Perversions and Subversions of Criminal Law". In The Boundaries of the Criminal Law, edited by R. A. Duff, et al., 88-112, Oxford: Oxford University Press, 2010.

Duff, R. A. "Perversions and Subversions of Criminal Law". In The Boundaries of the Criminal Law, edited by R. A. Duff, et al., 88-112, Oxford: Oxford University Press, 2010.

• The stance that crimes are recognition of moral wrongs in society is a form of legal moralism, in contrast with the legal positivism of John Austin, and can take both positive and negative forms. Positive legal moralism says that all morally wrong acts should be illegal and some other moral things, whereas negative legal moralism says that only morally wrong acts should be illegal, but they do not have to be illegalized (90).
• The arguments among legal moralists do not primarily concern themselves with morality and the type of actions to be illegalized, but the political question of what actions the state should intervene in: all wrongs or just public wrongs (90).
• The author supports the point of legal moralism, arguing that the primary purpose of the criminal justice system is to condemn certain acts and provide a public response to those actions on behalf of the public. The trial is central to this, because it requires that the defendant engage in the polity as a rational citizen in defense of her actions or acceptance of guilt (91-92).
• The author defines legal perversion as the use of criminal law for purposes contrary to the values upon which the rule of law is based, whereas legal subversion is the use of criminal law for matters which should have been dealt with using other forms of law (92).
• Contemporary criminal law is guilty of two related perversions: laying undue burden on the defendant to prove innocence, and criminalizing conduct which cannot be considered wrongful. A recent example is of terrorism legislation, which criminalizes possession of items related to terrorism, removing any intention requirements for the crime (93).
• Laws like this, which criminalize acts which are not in themselves wrong, require a substantial justification to improve the public good without overly burdening individuals (94-95).
• Some contemporary criminal laws, like the Terrorism Act of 2000 referenced earlier, do not fulfill these requirements for common good, as even when they improve the public good, they place far too much onus on individuals by requiring them to prove their innocence or suffer penalties (95).
• The basis of criminal law is that individuals are innocent until proven guilty and that the onus of proving guilty is on the prosecution. The prosecution can demonstrate scenarios in which criminal intent can be presumed and which the defendant may have to justify, but beginning with a presumption of guilt goes against the essence of law (96-97).
• Anti-social behavior in England is dealt with using anti-social behavior orders [ASBOs], issued in civil courts, without criminal standards of proof, but subject to criminal penalties if breached (98). ASBOs introduce criminal penalties into circumstances otherwise under civil jurisdiction, subverting criminal law (99).
• The author argues that ASBOs also have more significant implications which pervert criminal and civil law by violating the central condition of treating convicts as rational citizens. Instead of penalizing actual criminal conduct, ASBOs penalize engaging in situations where criminality might occur, like banning people from pubs. This restricts the agency of citizens by criminalizing the capacity to make certain decisions, undermining a core assumption of criminal law (99-100).
• The separate civil and criminal liability aspects of ASBOs are troublesome and subvert criminal law. The only aspect of an ASBO subject to criminal standards of proof is the breach of the order, meaning that freedom from criminal liability for breaching an ASBO must be based on legitimate reason for the breach, not allowing a defendant to explain or justify the behavior which led to the ASBO, which require civil, not criminal, standards of proof (101).
• Many civil law system have separate administrative offenses considered non-criminal. The difference between criminal and administrative offenses are usually that administrative infractions do not appear on records, have simpler court procedures, and contain no formal condemnation. Since they do not stigmatize the offender, they do not require proof of fault or a number of protections included in criminal proceedings (102-103).
• The author argues that the placement of many actions under administrative offenses rather than criminal offenses perverts criminal law by allowing criminally wrong acts to be committed without the societal condemnation that should rightfully accompany them. Some acts certainly require public condemnation, and administrative offenses cannot meet that requirement, no matter how efficient (103).
• The author notes that, because its essential quality is imposing harsh penalties for intentional public wrongs, criminal law is not suited for regulating the prevention of harm, which general do not fit into a system requiring mens rea. This fact means that criminal law must be used appropriate, and those cases dealt with under other systems of law (107).
• The subversion or perversion of criminal law can be economically efficient or beneficial for the implementation of specific state policies, but the author argues that ultimately the role of criminal law in society is a core element of liberal republicanism, or other political systems, and should not be degraded for short-term gain (112).