Criminal Law in A World of States

In recent decades, a new school of criminal law theory has emerged. Its proponents reject the traditional story that criminal law ought to be justified on either retributivist or utilitarian grounds alone. Instead, they argue that justifications for criminal law must be rooted in a broader political theory of the state’s authority. While this political theory turn is becoming increasingly dominant in the literature, it gives rise to two significant challenges that scholars have thus far failed to recognize. These challenges emerge when we turn our attention from an internal, domestic view of the state to the world beyond its borders.

First, the conception of the state at the heart of the leading political theory accounts of criminal law seems to sit in a vacuum. However, when we recognize that each political community exists in a world of states and persons beyond its boundaries, we begin to see that conditions external to the state might undermine the very possibility of the sort of state authority these accounts propose. Second, the political theory turn seems to pose an important challenge for international criminal law, which on the standard account is viewed to be unconnected to any particular political community. If the justification for criminal law must be anchored in a political theory of the state, it is unclear how we could ever justify instances of criminal law that seem to be untethered from a state.

In this Article, I argue that these two challenges have a common solution, which comes into view when we rethink the standard picture of international criminal law. Far from being untethered from the state, international criminal law is deeply connected to the state; indeed, international criminal law functions to secure a particular form of the system of states. And in doing so, international criminal law upholds the global conditions necessary for the state as conceived by this new line of criminal law theorists to function. With this perspective, international criminal law no longer seems like an outlier to a political theory of criminal law, but rather a necessary precondition for it. And the vision of the state at the heart of the political theory accounts no longer seems detached from the world beyond its borders, but rather is a constituent part of a global system of states, each acting to maintain that system.