Theories of Criminal Law

Philosophical ‘theories of criminal law’ may be analytical or normative (§ 1). Once we have identified the salient features that distinguish criminal law from other kinds of law (§2), we ask whether and why we should maintain such an institution (§3). Instrumentalist answers to this question portray criminal law as an efficient technique that helps us achieve worthwhile ends; non-instrumentalist answers portray it as an intrinsically appropriate response to certain kinds of wrongful conduct (§4). By considering the question of how the criminal law should address citizens (§5), we can discern the truth in the non-instrumentalist perspective. The next question concerns the proper scope of the criminal law: what kinds of conduct should be criminalised? Several candidate principles of criminalisation are critically discussed (§6), including the Harm Principle, and the claim that the criminal law should be concerned with ‘public’, rather than merely ‘private’, wrongs.Further questions are raised, however (§7), by the increasingly important phenomenon of international criminal law.