Law as Punishment — Punishment as Law

Abstract

A second debate selected for the purpose of testing our hypothesis, one that is central to contemporary legal practice and theory, concerns ‘the war against crime’ and the sustained effort to make criminal law the most powerful weaponry in this war. Indeed, the debate goes to the very meaning of ‘the rule of law’ in criminal law or, what comes down to the same point, to the role of power and violent coercion in investigating, prosecuting and punishing crime. There are those who say that, if it is to obey the rule of law, criminal law should conceive of itself first and foremost as a set of constraints on state power in crime fighting, so as to protect citizens from sovereign arbitrariness even in the case that they have become criminals. The most orthodox among them go as far as to forbid any ‘fighting’, i.e. any method or tactics, that is not explicitly permitted by law. There are others who want to reverse this order by saying that if criminal law is supposed to be law enforcement, we should enable it to use means effective to that end in the first place. Protecting law abiding citizens against the harmful effects of crime should, according to them, be prior to protecting criminals against state power. The rule of law can only function if it respects and integrates this order of things.