Two Conceptions on Equality Before the (Criminal) Law

RETHINKING CRIMINAL LAW THEORY, Stribopoulos, Tanguay-Renaud, eds., Hart Publishing, 2012

20 Pages Posted: 26 Jan 2012

See all articles by Malcolm Thorburn

Malcolm Thorburn

University of Toronto - Faculty of Law

Date Written: January 25, 2012

Abstract

In this chapter, I consider how the well-known idea of equality before the law plays out in the criminal context. I suggest that there are (at least) two rival conceptions at work in criminal law doctrine and theory. One conception, which I call "Diceyan", emphasizes the equality of all - private citizen and public official alike. It emphasizes the accountability of public officials to the ordinary courts for ordinary offences. The second conception, which I call "Kantian", emphasizes the equality of all private citizens before the law. But in order to maintain that equality, it stresses the important differences between state action and private action for the purposes of criminal responsibility. It is this second conception that fits best with a modern legal order in which state officials are subject both to special limits (constitutional and otherwise) but are also given special powers in virtue of their status as public officials.

Keywords: Equality before the law, criminal law, justification, public law, officials, public-private distinction

Suggested Citation

Thorburn, Malcolm Bruce, Two Conceptions on Equality Before the (Criminal) Law (January 25, 2012). RETHINKING CRIMINAL LAW THEORY, Stribopoulos, Tanguay-Renaud, eds., Hart Publishing, 2012, Available at SSRN: https://ssrn.com/abstract=1991754

Malcolm Bruce Thorburn (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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