Book review: Criminal law and the authority of state

Abstract

Although the notion of state, its attributes and its role in public life has been a subject of perennial and constant discussion, one could argue that the very function and objective of the state is the creation and maintenance of peace and safety of subjects under its dominion. In fulfilling these essential functions the state enjoys various sovereign rights, which, inter alia, include put in Hobbesian terms, the potestas coactive, i.e. the power to impose punishments, and the gladium iustitiae, the power to carry out punishments.1 And since at least the paradigm shift carried out by Hobbes claimed to be the founder of modern political philosophy, ‘‘the philosophical justification of the political system and the law is no longer accomplished by relating the existing order and the law as practiced to their ontological basis. Instead, the state and the law are analytically de-constructed and reconstituted with a view to the specific goal of creating peace and security for the individual […]’’.2 In line with this tradition of rational construction of state’s authority, Max Weber provided the most influential definition of the modern state: ‘‘a state is that human community which (successfully) lays claim to the monopoly of legitimate physical violence within a certain territory […]’’.3 Thus, legitimacy of the state authority, that is, the legitimate use of power including ius puniendi is without doubt one of the central themes of modern political philosophy and jurisprudence. In the footsteps of this tradition, the present collection of essays brings together criminal lawyers, criminologists, legal theorists and public lawyers who, in a wide variety of ways, address the question how the modern liberal state relates to those under its jurisdiction through the criminal law (p. 1). In the engaging introductory chapter, the editors emphasise the fact that the required exchange between criminal lawyers and public lawyers has been neglected so far, and they argue that the separation of different discourses on the legitimacy of criminal law, public law, criminal law theory and sociologically oriented criminal justice scholarship is problematic as it now stands. Such a dialogue among various discourses and scholarly approaches is not only desired but also required on the face of the fact that the criminal law in most instances wreaks such havoc in people’s lives and the criminal punishment is such an extraordinary abomination, that it patently needs all the justificatory help it can get.