Rethinking the 'principles of criminal law' in a time of upheaval

The proposition that we live in a time of upheaval, and one with profound implications for criminal law as one of the pre-eminent expressions of state authority, can scarcely be doubted. Amid the breakdown of not only the rules-based international order (unevenly realised as it was), but also of some basic tenets of the rule of law in a number of self-professed ‘liberal democracies’, the principles which liberals had taken to restrain the state use of its criminalising power are under sustained threat. This arguably puts those of us who have been critical of key aspects of liberal criminal law theory in a difficult position: where do we stand in the face of growing illiberalism and threats to democracy in this era of upheaval? Have our views even contributed to these developments?  What are the values and institutional arrangements we need to restate, build and protect in stronger form, and what needs to be rethought?  In this paper, we address these questions, situating them within a broad political economy understanding of the relevant developments; reading the current upheavals in a longer historical context reaching back to the 1970s and beyond; and arguing that an important precondition of meeting the normative and practical challenge to adequately constrained criminal law is reaching a dynamic understanding of the legal, social, political and economic forces which have shaped the current upheavals.