Criminal punishment has traditionally been the most elementary and obvious expression of the state's sovereign power. As evidenced by the ready appeal to punishment in the international community as well as in the European Union, the institution of punishment also provides an important medium for expressing the majesty of new super-entities as well as of traditional states.
One would expect, therefore, that the theory of punishment and of criminal law would be high on the agendas of those interested in the philosophical foundations of the state. Yet in contemporary writing on political theory, particularly in English, neither criminal law nor criminal procedure receives much attention. (1) The converse is also true: those writing on criminal theory rarely see the connection between their internal disputes--say, about victims' rights and impossible attempts--and the broader issues, not only of political but of moral philosophy. In this essay I assess the way in which certain basic positions about the nature of state and society work themselves out in criminal law. In the absence of a developed literature on political and criminal theory, most of these arguments will be novel attempts to lay the groundwork for further discussion.
I begin by projecting implications for criminal law from specific theories, known by the conventional labels of libertarian, liberal, communitarian, and perfectionist approaches to using criminal sanctions. Then I turn to the problem of legitimacy in both domestic and international criminal law.
The distinction between political and moral theory is critical to the argument. Some writers today use the term "moral" so broadly that their usage obfuscates the important distinction between the state's acting legitimately and individuals acting morally. (2) The political addresses the power and prerogatives of state officials--that is, of human beings cast into a particular role of enforcing criminal prohibitions. The moral focuses primarily on the lives of individuals, both in their personal flourishing and in their relationships with other individuals.
An example of the kind of the argument I seek to avoid is the conventional claim about desert. The argument goes like this. Some people--really bad people like Adolph Eichmann or Slobodan Milosevic--deserve to be punished. Because they deserve a certain consequence, it follows that the state is justified in delivering it. This is a non sequitur. An extreme version of the non sequitur is found in the retributive theory of Michael Moore who argued that because individuals feel guilty, they should be punished according to their guilt. (3) Missing are the critical premises first that it is the business of the state rather than of God (or the victim or the victim's family) to punish the offender, and second that the offender's feelings of guilt are a reliable indicator of that which should be punished and of the appropriate degree of punishment. (4)
The popular language of "just deserts" reveals the depth of our confusion. Just because the offender might deserve punishment, it does not follow--without an appropriate theory of state power--that the state should assess the degree of deserved punishment and use its power to impose it on the offender. The quick assumption that the state is entitled to punish offenders who "deserve" it is one of the unfortunate banalities of criminal law in our time.
The logical gap between the offender's desert and someone's or some entity's authority is well understood in Jewish law and in other religious legal systems. Genesis 9:6 tells us that "whoever sheds the blood of man, by man shall his blood be shed." This is comparable to claims about desert. The killer may deserve to die but it does not follow that the state is entitled to kill him. We should think about this conceptual divide as the distinction between moral and political theory. The moral specifies what people deserve. …