Criminalizing the State
Osgoode Hall Law School, Toronto
Forthcoming in Criminal Law and Philosophy
Osgoode CLPE Research Paper No. 23/2012
In this article, currently its penultimate version and to be published as part of a symposium on political theory and criminal law, I ask the underexplored question of whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a specific focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to the criminalization of states - that is to say, objections to the condemnation and punishment of the state, as a result of a suitably ‘criminal’ process of public accountability, for the culpable perpetration of legal wrongs. I then investigate ways in which these objections can be challenged.
The first claim I address is that the state is not a kind of entity that can intelligibly perpetrate domestic criminal, qua legal, wrongs. I argue against it by building upon an account of the modern state according to which it may be a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions (domestic or international), treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility.
I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of domestic and international state criminalization on the table as a justifiable response to state wrongdoing - even if doing so compels us to revisit some of our usual assumptions about what is required for justified (individual) criminalization. I further suggest that thinking of the state as a possible criminal or, more broadly, as a possible wrongdoer, opens up interesting new vistas for criminal law theory in general.
Number of Pages in PDF File: 50
Keywords: state, government, officials, wrongdoing, criminalization, corporate agency, corporate responsibility, state accountability, legal fictions, criminal process, procedural protections, justification of corporate punishment, civil disobedience, rebellion, authority, Pettit, Raz, Hobbes, Kant, Feinberg
Date posted: August 3, 2012