Criminal Law and Penal Law

Criminal Law and Philosophy 14: 431-446.

Rutgers Law School Research Paper

27 Pages Posted: 16 Sep 2019 Last revised: 16 Jul 2021

See all articles by Alec D. Walen

Alec D. Walen

Rutgers School of Law; Rutgers, The State University of New Jersey - Department of Philosophy

Date Written: September 19, 2020


Antony Duff’s "The Realm of Criminal Law" offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff conceives of it, with penal law. Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.

Keywords: criminal law, punishment, penalty, wrongness constraint, forfeiture, Duff

Suggested Citation

Walen, Alec D. and Walen, Alec D., Criminal Law and Penal Law (September 19, 2020). Criminal Law and Philosophy 14: 431-446., Rutgers Law School Research Paper , Available at SSRN:

Alec D. Walen (Contact Author)

Rutgers, The State University of New Jersey - Department of Philosophy ( email )

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Rutgers School of Law ( email )

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