Eliminating Criminal Law

Abstract

There is a cross-ideological consensus that criminal systems in the United States face a legitimacy crisis. The causes and precise nature of this crisis are disputed. But it’s common ground that criminal law is part of the problem. There’s too much criminal law; criminal law isn’t what it used to be; criminal law isn’t performing its proper functions, or at least could be performing its functions more effectively. Leading criminal-law scholars contend that we need a theory of criminal law—its nature and limits—to address “overcriminalization.”

I contend that we should not use the concept of criminal law to think or talk about U.S. criminal systems at all. Because actually existing criminal systems have never measured up to the “criminal law” that is most often encountered in scholarship and in classrooms, “criminal law” invites us to misdescribe criminal systems in ways that entrench the status quo. Eliminating criminal law will enable us to better understand how the U.S. creates crimes and criminals, as well as to deliberate about and contest the content and structure of its criminal systems. It will also create more space to question whether criminal systems can be justified.

Keywords: criminal law, criminal justice reform, overcriminalization, criminalisation, jurisprudence, philosophy of law, positivism, eliminativism, abolition, Hobbes