Anthony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, THE TRIAL ON TRIAL vol 3: TOWARDS A NORMATIVE THEORY OF THE CRIMINAL TRIAL Oxford: Hart Publishing (www.hartpub.co.uk), 2007. vi + 344 pp. ISBN 9781841136981. £40.

Abstract

reviews 165 11 EdinLR 138) and John Gardner among others. If one had any doubts about this, they are dispelled by reading this book, which contains many new insights and which, equally importantly, tackles complex issues of criminal law theory with a rare clarity. Engaging with the field of criminal law theory can sometimes leave those who are not legal theorists feeling bewildered and slightly inadequate. But this book proves that complex issues can be discussed at an elevated level without making them incomprehensible to all but a small group of dedicated theorists. Indeed, the book should be of interest not just to academics but also to students and even -unusually for a book in this field -practitioners and policy makers.

What makes a response to schoolroom wrongs permissible?

“…1 One approach to justifying criminal punishment, offered by Jeffrey W Howard, understands punishment as moral fortification , building on R A Duff’s communicative theory, and Jean Hampton’s influential moral education theory of punishment. Duff’s communicative theory considers the processes of trial, sentencing and punishment (Duff, 2001, 2018; Duff et al, 2007) as an engagement in dialogue with the offender. Duff insists that this not a form of moral education: adult offenders know what they do is wrong, they simply do not care enough to avoid the wrong (Duff, 2001: 91).…”

Retributive Whisper: Communicative Elements in Parole

“…Duff et al (2007, 214) argue that victims do not need to participate in the criminal trial. The trial, being a public interest enquiry, is always concerned with the interest of the victim.…”

“…We believe the answers to these questions are affirmative if we analyze parole through the lenses of a communicative sentencing framework. Duff et al (2007) argue that the criminal court is a communicative forum that involves mutual recognition of responsibility among participants. We suggest that the parole process could be reconceptualized as a communicative forum as well.…”

Expert Testimony, Law and Epistemic Authority

“…This requirement to be sure is, as Duff et al argue, linked to a central function of the criminal trial: the public moral censure of those found guilty. 65 Such a public expression of 'reactive attitudes', notionally on behalf of the community at large, cannot appropriately be based on anything less than a claim to know the accused is guilty. 66 Even in civil trials, there is controversy over whether 'nakedly statistical' evidence of the facts necessary to establish liability is sufficient to prove a case 'on the balance of probabilities'.…”