A criminal law we can call our own?

Abstract

This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity will relate to their criminal law and of the various active roles that they will be ready to play in the law’s enterprise. This account does not aim to describe, or to justify, our existing systems of criminal law. Instead, it offers a normative ideal against which we can judge our existing institutions, and towards which we can strive to reform them.