Oxford Journal of Legal Studies, Vol. 25, No. 3 (2005), pp. 353–367 doi:10.1093/ojls/gqi018  The Author 2005. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org Theorizing Criminal Law: a 25th Anniversary Essay R. A. DUFF* 1. What Kind of Theory? My remit for this paper was to write about ‘theories of criminal law’ during the first 25 years of the life of the Oxford Journal of Legal Studies. It is of course a risky venture, to try to discern the significant theoretical developments in so short a period of time, and from a stance so close to it: one can all too easily imagine the author of the centenary article in 2080 wondering how the author of this 25th anniversary article could have been so unduly impressed by a trend that quickly turned out to be no more than a passing fad, or could have failed to notice what turned out to be a major shift in criminal law theorizing. However, and bearing in mind the Journal’s ‘third major aim’ of ‘help[ing] bridge the gap between law and other disciplines’, and of building on ‘Oxford’s traditional strength in legal history and legal philosophy’, 1 it is worth asking how things look now, from this admittedly close perspective on an admittedly rather short period of time. The topic description ‘theories of criminal law’ at once invites two questions: ‘Theories of what?’, and ‘What kind of theory?’. The ‘Theories of what?’ question itself then divides into at least three. First, should theorists aspire to an a priori—ahistorical, a-geographical, a-contextual—theory of ‘the criminal law’ as such: to, for instance, an account of the concept of criminal law, or of the metaphysical character of criminal law, or of the proper principles and aims of criminal law, that applies to all systems of criminal law whenever and wherever they exist? Or should we aspire only, more modestly, to an account of criminal law as it is or should be in some more local time and place (and if so, just how local must our account be)? Second, however we answer the first question, what falls under the description ‘criminal law’? It clearly includes the substantive criminal law—the rules, principles, * Department of Philosophy, University of Stirling. I am very grateful to the Leverhulme Trust for the award of a Major Research Fellowship, during which I wrote this paper. 1 From the Foreword to the first issue of the Journal: (1980) 1 OJLS i. I will not be able to discuss the Journal’s publications in the history of criminal law here.