Responsibility, Citizenship, and Criminal Law

This chapter starts with a claim about a central, distinctive purpose of criminal law — one that helps distinguish criminal law from other modes of legal regulation. It argues that a distinctive and proper purpose of our criminal law has to do with accountability and the attribution of responsibility. Section 2 discusses the kind of community that our criminal law — criminal law of a kind apt for a liberal republic — requires, and argues that in the context of the domestic criminal law of nation states (still the salient paradigm of criminal law) it is the community of citizens. Anyone who gives citizenship this central significance faces a range of objections, to the effect that such a conception of criminal law cannot do justice to transnational criminal law, to the status of non-citizens who are either permanent residents of or temporary visitors, or to the status of citizens who may find themselves excluded from full membership of the polity; that it fosters a dangerous distinction between an exclusive group of ‘citizens’, who are full members of the polity and receive all the protections that the criminal law offers both victims and off enders, and a wider group of outsiders, of actual or potential ‘enemies’, to whom such membership and protection are denied. Such objections are addressed in Section 3, and it is argued that although the concept of citizenship can be given this unacceptably exclusionary significance, we need not do so: we can and should retrieve a more inclusionary conception of liberal citizenship that can structure a normatively plausible picture of criminal law.