Two Conceptions of the Criminal Law

In this paper, I articulate two competing conceptions of the aims and subject matter of the criminal law. A private right conception views the criminal law as, in the first instance, a set of institutions meant to vindicate independent moral rights, and punishment as the uniquely appropriate moral response to invasion of those rights. A public law conception, in contrast, views the criminal law as the harshest, and crudest, means for enforcing compliance with legally enacted rules. From a public law point of view, the political legitimacy of the criminal justice system is a central philosophical problem for the philosophy of the criminal law in a way that it is not from a private right point of view. I go on to explore the contrast between the private right and public law conceptions in the context of preventive policing, an early development in the emergence of the welfare state. I suggest that the function of preventive policing – meant to prevent crimes ex ante rather than simply respond to them ex post – is more easily accommodated on a public law conception than it is on a private right conception, i.e. that preventive policing is more easily understood as an attempt to find less coercive means of promoting rule compliance rather than as a means of vindicating the invasion of private right.