The Place of Criminal Punishment in the Legal Order

ABSTRACT

One of the most striking developments in criminal law theory over the last 20 years or so has been the emergence of accounts that focus on the relationship between the institutions of criminal justice and a certain kind of legal order. Rather than seeing criminal law as a way of promoting a value external to the legal order (such as assigning just desserts, supporting pre-legal moral values, or encouraging the efficient allocation of resources), these accounts try to understand the role of criminal law as an essential part of the civil condition, that is, of a legal order that provides an institutional structure within which free and equal persons can interact rightfully. Several of these accounts (in a republican vein, Antony Duff’s, and in a historicist vein, Lindsay Farmer’s) understandcriminal law as in some sense constituting, rather than merely instrumentally serving, the civil condition. In Malcolm Thorburn’s version, the state’s right to punish is said to be a constitutive feature of the civil condition, and the relationship between crime and punishment is analogized to the way that rights and wrongs mutually constitute each other in private law. In this paper, I argue that even if is it right (and I think it is) to understand the legal system as constituting a civil condition rather than as being instrumental to some external objective, the practice of criminal punishment is nevertheless best understood as instrumental to, not as constitutive of, to the maintenance of the civil condition. In contrast to private law, where rights and wrongs are reciprocally defined, from the point of view of civil order it is (despite many creative efforts) difficult if not impossible to identity any characteristic that makes conduct inherently deserving of punishment. Put another way, the targets of criminal punishment are reasonably well-specified forms of conduct that can, indeed must, be defined independently of the punishment. It is therefore better to understand the place of criminalization and criminal punishment as making an instrumental contribution to the legal order’s non-instrumental task of constituting the civil condition.