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In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in a counterfactual perspective, and asks what this means for institutional arrangements--our relations to each other and to the state. This focus is then applied to reconceptualize a variety of criminal law defenses, ranging from self-defense and insanity to necessity and provocation. In the analysis of these doctrines, the author argues that defenses cannot be fully explained by the standard inquiry into individual minds, characters, or virtues. Instead, defenses reflect the need for a liberal polity to control vengeance. She goes on to argue that the standard view may yield a "paradox" of individualization which, in some cases, may actually work to the detriment of individuals. To undertake this kind of inquiry invites particular avenues of inquiry in the criminal law that have never received enough support, such as history and comparative law; and provides a new perspective on a variety of theoretical developments of the past decade, including the collapse of the harm principle, the increasing importance of social norm scholarship, and the impact of feminism on the substantive criminal law.

Publication Citation

151 U. Pa. L. Rev. 1691-1746 (2003)