The Takings Doctrine and the Principle of Legality

Abstract

The prohibitions of the criminal law promise an arena within which we may pursue our lives pretty much free of the fear of being preyed upon by our less scrupulous neighbors; but that arena of freedom can be threatened by the intrusions that the state makes use of to enforce those very prohibitions. The limits that keep the state from overstepping its bounds, traditionally thought to be called for by the notions of moral responsibility and desert, are instead called for by the promise itself of personal freedom made by the criminal law. But beyond the limits on the state's use of force, and in the absence of responsibility and desert, fairness calls for some amount of compensation for those detainees whose liberty is sacrificed to safeguard the community.