This book sets out a new understanding of the penal law of a liberal legal order. The prevailing view is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure someone for engaging in unlawful conduct and for the results of that conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory concerning when, and in what measure, it is permissible for the state to coerce a free agent. The book argues that penal action by public officials is permissible force rather than wro ... More

This book sets out a new understanding of the penal law of a liberal legal order. The prevailing view is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure someone for engaging in unlawful conduct and for the results of that conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory concerning when, and in what measure, it is permissible for the state to coerce a free agent. The book argues that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom — formal liberty, real autonomy, and free citizenship — and each informs a distinctive theoretical paradigm of penal justice generating its own constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the book argues that the penal law forms a complex whole under an inclusive idea of freedom uniting the constraints on punishment flowing from each paradigm.