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Criminal Law as Public Law

THE PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, Duff and Green, eds., Oxford University Press, 2011

25 Pages Posted: 22 Oct 2010 Last revised: 25 Jan 2012

Malcolm Thorburn

University of Toronto - Faculty of Law

Date Written: October 21, 2010


In this chapter, I propose a novel way of justifying the practices of the criminal justice system — a position I call a ‘public law account’ of criminal justice. I call it a ‘public law’ account because it conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate. Like the new legal moralism of Antony Duff and John Gardner, my account is an attempt to justify the workings of the criminal justice system by demonstrating that they are just what is required for us to be true to a set of roles and relationships that have intrinsic value. But the relevant roles and relationships for criminal justice are not those we understand from ordinary morality. Rather, they are the legally defined roles — such as private citizen, police officer, judge, etc — that we take up within a larger constitutional order that, I shall argue, we could not abolish without abandoning necessary preconditions for our moral life.

The advantages of this approach are several. First, because the liberal constitutional order is concerned with protecting our liberty rather than with guiding our moral choices, it is consistent with a less moralistic criminal justice system than the one Duff and Gardner feel impelled to endorse. Second, because the relations in the constitutional order are set out in terms of the rightful use of coercion, the public law account has the resources to explain when the state is justified in using coercive force toward its citizens. This means that we are able to provide an account of criminal justice that does not have to explain away the centrality of coercive state power. And finally, because Anglo-American criminal law doctrine is fundamentally concerned with the requirements of liberal constitutionalism rather than the enforcement of morality, we find that the public law model is a much better fit with existing doctrine than the moralist alternative.

Keywords: Criminal Law, Public Law, Justifications, Moralism, Policing, Coercion, Authority, Constitutionalism

Suggested Citation

Thorburn, Malcolm, Criminal Law as Public Law (October 21, 2010). THE PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, Duff and Green, eds., Oxford University Press, 2011. Available at SSRN:

Malcolm Bruce Thorburn (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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