The aim of this paper is to outline a political theory of criminal law, that is, a theory that does not rely on any controversial moral view on fault and punishment. The argument is based largely on John Rawls's work but also addresses some inconsistencies regarding crime and punishment therein. The paper will make a case for a mixed theory of criminal law and punishment along the following lines: The fair terms of social cooperation generate duties for the violation of which one can be held properly responsible. However, nothing in this determines what the accountability-seeking measure may be or its intensity. These are matters of appropriateness to be determined in terms of the assurance of the participants in a well-ordered society and the long-term stability of social cooperation. Criminalization and punishment are contingent, historically qualified means of achieving stability and assurance, serving only as last resort. Although the institution of punishment is subject to the constraints of the rule of law, which stem directly from the liberty principle, questions such as the intensity of punishment or the proportionality between offenses and penalties depend on the proper workings of the utilitarian calculus in combination with the requirements of democratic decision-making.
- © 2012 by the Regents of the University of California. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp.