A Political Theory of Criminal Law: Autonomy and the Legitimacy of State Punishment

Abstract

In this article, Markus Dubber considers two questions. First, as a matter of political theory, how can punishment be legitimated in a modern liberal democracy? Second, as a matter of legal theory, what would a system of criminal law look like that satisfied the basic requirements of political legitimacy set out in response to the first question? From early on, the power to punish was viewed as a thoroughly unproblematic instance of the "police power," generally regarded as "the most essential, the most insistent, and always one of the least limitable of the powers of government." As "an idiom of apologetics," the police power cannot generate meaningful limitations on criminal law. For principles of criminal law one must instead turn to the external constraints that political legitimacy places on the power to punish. Ever since the Enlightenment, and the American Revolution, the most basic principle of political legitimacy is the notion of autonomy, or self-government. In this article, Dubber explores the implications of the principle of autonomy for the various aspects of state punishment: criminal law, criminal procedure, and prison law.

Keywords: Criminal law, legal theory, political theory, autonomy, empathy

JEL Classification: K14, K30