James Edwards

CRIMINALIZATION WITHOUT PUNISHMENT

What is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Criminal law’s asymmetry

ABSTRACT Criminal law confers powers and grants permissions. In doing so it does not treat all alike. Some state officials (and some of their delegates) are given powers and permissions that are much more extensive than those given to private persons (who are not delegates). As a result, steps taken to achieve criminal justice are often serious crimes if taken by members of the latter group, while being perfectly lawful when taken by members of the former. My question here is what justifies this asymmetry. I consider two candidate explanations. One appeals to impossibility. Another appeals to efficiency. While explanations of the first kind have become increasingly popular, I offer some reasons to doubt that they succeed. I conclude with a preliminary defence of a view that appeals to efficiency.

Master Principles of Criminalisation

This book is the fourth—and final—edited collection to emerge from the editors’ project on criminalisation. Having addressed the boundaries, the structure and the constitution of the criminal law, the editors now turn to its political morality. They begin with an important scholarly contribution of their own: a 53-page introduction which, in addition to summarising the chapters to come, surveys the dizzying variety of questions that a complete theory of criminalisation would need to address. It is a survey everyone interested in criminalisation should read. It is also a challenge to the way many have approached the subject. For the editors, the approach that has come to ‘dominate so much normative theorizing’ (44) about criminalisation, is that which searches for ‘master principles which can determine the scope’ or at least ‘the “in principle” scope, of the criminal law’ (45). Candidate master principles include the harm principle, the offence principle, the dignity principle, the sovereignty principle, the dominion principle, and Michael Moore’s wrong principle (44–45). Strikingly, the editors are not simply sceptical of individual entries on this list, but of the very enterprise of trying to come up with something