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Contribution to Book
Criminal Law as Public Law
Philosophical Foundations of Criminal Law (2011)
  • Malcolm Thorburn, Queen's University - Kingston, Ontario

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.

Publication Date
Antony Duff and Stuart Green
Oxford University Press
Citation Information
Malcolm Thorburn. "Criminal Law as Public Law" Philosophical Foundations of Criminal Law (2011)
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