Criminal Law as Public Law II
This chapter develops the “public law conception” of the criminal law. By embodying a form of negative reciprocity, the criminal law plays an important role in stabilizing social cooperation. Stabilizing social cooperation with public institutions is the basic function of the criminal law, in the sense of a function that must be adequately discharged regardless of whatever other functions we might wish to achieve by means of the criminal law. Hence, the criminal law is subject to a “fully political standard of justification”: the criminal law is worth supporting if and only if (1) the institutions whose rules it enforces are worth supporting, and (2) its use in a particular context would be consistent with the principles that make those institutions worth supporting in the first place.