Criminal Theory and Critical Theory: Husak in the Age of Abolition

Abstract

Political theorists imagine a world without government (“a state of nature”) in order to assess the legitimacy of existing states. Some thinkers, such as philosophical anarchists, conclude that in fact no state can be justified. Should theorists of criminal law similarly imagine away the very thing they seek to theorize? Doug Husak has claimed that “the object of criminal theory is to offer suggestions to improve the content of the criminal law … not to abolish it.” But this Essay argues that abolitionist-leaning scholarship reflects several welcome developments in criminal theory: a concern with the state; attention to empirical data and the distinction between normative claims and descriptive ones; recognition of enforcement as an essential element of criminal law; and above all, a demand that criminal law prove itself—a refusal to grant to criminal law a presumption of legitimacy. These theoretical orientations did not appear for the first time in abolitionist scholarship. In fact, all are calling cards of Husak’s own work, and cause to celebrate it.

It was 1974, and Doug Husak was still a student, when Robert Nozick claimed that “[t]he fundamental question of political philosophy, one that precedes questions about how the state should be organized, is whether there should be any state at all. Why not have anarchy?”¹ That Nozick could see this question as the fundamental one suggests that he was thoroughly a modern rather than an ancient, to invoke a familiar dichotomy used to organize the history of political thought.² The ancients viewed the polity as both chronologically and normatively prior to any individual member; they did not imagine such a thing as a pre-political individual who would have the autonomy and independence (let alone a moral right) to decide whether to form a state or not. The discovery—or invention—of the autonomous individual arguably marks the birth of liberalism and the transition from the ancients to the moderns.³ That shift took place long before Nozick’s libertarianism, with profound consequences: it changed baseline expectations, so that philosophers might begin from a presumption against state authority rather than one in favor of it.

Criminal theory purports to be modern, in that most who write in this field embrace basic liberal precepts such as respect for individual liberty and the need for constraints on the state.⁴ We might expect, then, that the fundamental question of criminal theory, one that precedes questions about how criminal law should be organized, is whether there should be any criminal law at all. Why not abolition? But that is not a question widely pursued by criminal theorists. Husak has suggested that it is a question outside the scope of criminal theory altogether. “The object of criminal theory is to offer suggestions to improve the content of the criminal law from a moral perspective, not to abolish it or transform it into something it is not.”⁵ Husak acknowledges “a fine line” between improvement and transformation, but he did not attempt to mark that line except to insist (sometimes) that abolition was off the theorist’s table.⁶

Nearly half a century after Nozick wrote, and after almost as many years of influential scholarship from Husak, abolition is on the table for many criminal law scholars, some more theoretically inclined than others. Most works contemplating abolition are anything but libertarian, and many critique classic liberalism; they often focus instead on the interdependence of human beings and the selective, racialized ways in which conceptions of individual responsibility have been constructed to legitimize structural inequality.⁷ And yet still the new prominence of abolitionist arguments may mark a profound shift in baseline expectations akin to the one that divides the ancients from the moderns: we may be moving from a world in which institutions of criminal law enjoy a presumption of legitimacy to a world in which they do not.

Husak has hardly embraced this abolitionist turn. To the contrary, he has expressed concern about what he calls “criminal law skepticism,” in which he includes abolitionism.⁸ But whatever one’s ultimate conclusion on the merits of abolition as policy or strategy, abolitionist-leaning scholarship reflects developments in criminal theory that are independently valuable: a concern with the state and its institutions; attention to empirical data, and a related insistence on keeping distinct normative and descriptive claims; an understanding of enforcement as an essential element of criminal law that theorists must address; and above all, a demand that criminal law prove itself—a refusal to grant to criminal law a presumption of legitimacy. These theoretical orientations did not appear for the first time in abolitionist (or skeptical) scholarship. In fact, all are calling cards of Husak’s own work, and cause to celebrate it.

Should we embrace these methods but nonetheless denounce the arguments for abolition that they may produce? In this essay, I investigate that question. I begin with a question about labels: Husak describes his enterprise as criminal theory rather than criminal law theory; is this a slip of the tongue, or a distinction with a difference? I will suggest that in fact Husak brings a concern with law, and a particular understanding of law, to his inquiries, much to the benefit of the scholars that follow him. Even as he has engaged in normative philosophy, he has insisted on telling the truth about law, identifying a broader range of empirical realities that matter to the work of criminal theorists. In the second section of the essay, I identify the implications of Husak’s observation that criminal law is in fact law. Law is not a divine writ, moral intuitions, or timeless and abstract principles of reason; it is a collection of human practices and human institutions. Law involves state institutions that are always costly, usually inefficient, often biased, and sometimes inaccurate. And yet, these institutions may turn out to be necessary, or the best of the available options. In my third and final section, I look to the future of criminal theory, with particular attention to critical perspectives including abolitionist arguments. Criminal theory should not commit at the outset either to preserving criminal law or abolishing it, I suggest. It should commit to honesty and critical inquiry, and to model that commitment, theorists will find no better inspiration than Husak.

Criminal Theory: Whither Law?

Though many scholars seem to use the phrases criminal theory and criminal law theory interchangeably, Husak has consistently favored the former.⁹ I have not been able to locate any explicit rationale for using one term over another in Husak’s own work or elsewhere, but I can imagine two very different arguments for dropping the word law and using the shorter phrase criminal theory. These two arguments are in direct opposition with one another, and in that opposition we may find much about where criminal theory has been and where it needs to go.

First, one might favor the term “criminal theory” over “criminal law theory” simply to avoid redundancy. On this account, criminal is an adjective that can be used only in the context of law. There is no such thing as crime, or criminality, without law. Nullum crimen sine lege could be understood not simply as a normative statement about the best design of a legal system, but as a conceptual truth. Call this the legalistic conception of criminality. It still requires an account of law, so if scholars disagree about what counts as law, they may share a legalistic conception of criminality and yet still disagree about what counts as criminal. But the key point is that in the legalistic conception, criminality is always defined by law.

Alternatively, one might favor the term “criminal theory” because one views law as optional or secondary to the enterprise. On this account, criminality is a characteristic of actions or persons, defined by wrongfulness, harmfulness, or some other extra-legal criteria. Positive laws, the laws actually enacted and enforced by real polities, may or may not accurately identify true criminality. A central aim of the criminal theorist who holds this view is the articulation of true criminality, with the hope that lawmakers and law enforcers will follow her recommendations. It is tempting to label this view the moralistic conception of criminality, since morality is the usual candidate for a non-legal guide to what is criminal. But to preserve the possibility that something other than morality could define criminality, I will call this second view the extra-legal conception of criminality.¹⁰

With these two categories, I mean to raise two jurisprudential questions. There is, of course, the classic and vexing question what is law, a darling topic of scholars of general jurisprudence but an inquiry that most criminal theorists seem to have viewed as unnecessary. The second question is about the meaning of the adjective criminal and the way that it relates to the category law. Though theorists have given some attention to what is distinctive about criminal law, they typically do so without first addressing what counts as law. I share many criminal theorists’ impatience with general jurisprudence that seems unconnected to actual practice, but it is my interest in actual practice that makes the question, what is (criminal) law, so important. When one seeks to justify criminal law, what are the precise practices or institutions that need to be justified? As Husak would put it, what are the data that our theories seek to explain or to justify?¹¹

In the next section, I examine the account of law and the conception of criminality that emerges from Husak’s work. One preliminary note may help clarify what is at stake. Our underlying assumptions about what law is, and what criminal law is, are of profound practical importance, even beyond their philosophical interest.¹² The disaggregation of criminality from law—the notion that acts themselves, or still worse, people may be inherently criminal—has been disastrous in the United States. It has allowed the state that makes and enforces laws to escape responsibility for the ways in which state actors bestow criminality. An extra-legal conception of criminality was articulated explicitly during the eugenics movement in the early twentieth century, but over a much longer period, it has made possible the association of criminality with a particular racial group: Black Americans.¹³ It has made it much more difficult to recognize the legal and social construction of Black criminality as a construct. It has reconfigured the political order to transform America into a carceral state: a nation organized around a fundamental division between full-fledged citizens and criminals.¹⁴ I don’t have any strong preference between the phrases criminal theory or criminal law theory, but I do think it is a mistake to theorize criminality without paying attention to law, or to theorize law without paying attention to state actors and state institutions.

As will become clear, I don’t think it makes sense to commit a priori that criminal theory will seek to improve criminal law, or transform it, or abolish it, or refrain from any of these tasks. Whether criminal law should be improved or transformed or abolished is one of the questions criminal theorists should seek to answer, and we shouldn’t bind ourselves to a particular conclusion before we’ve done the work. But being a modern, as far as political theory goes, when I enter conversations about criminal law I am committed at the outset to a background principle of political equality: a fundamentally inegalitarian criminal law is suspect, even if inequality were shown to produce more social stability or serve the interests of the political entity as a whole.¹⁵ There are questions to be resolved about what degree of inequality is tolerable, but I cannot imagine circumstances in which we would find legitimate a system of criminal law whose central function is the production and maintenance of a permanent underclass. My position on this point precedes my criminal law theorizing, but it is not pre-theoretical; it flows from political theory, which must precede and surround any theoretical evaluation of criminal law.¹⁶

Enough about my views; this is an essay about Husak. It seeks to demonstrate that Husak’s great influence, on me and many others, stems from the importance of law to his criminal theory.¹⁷ The next section examines the relevance of law in Husak’s work, and in so doing, clarifies what counts as law.

Neither Magic Nor Divine, But Human

In many works, Husak defines criminal law as those laws that subject persons to punishment, with punishment then defined as “an intentionally imposed deprivation that expresses condemnation.”¹⁸ This definition specifies which subset of law counts as criminal, and it specifies what counts as punishment, but it does not address the threshold question of what counts as law. Across Husak’s work, there are different possible answers to that question. Sometimes, the label law (at least, when modified by the adjective criminal) seems to refer only to formal rules and general principles of liability, such as those found in statutes or court decisions.¹⁹ But rules and principles, floating in the ether and disentangled from actual enforcement, are costless. And a signature feature of Husak’s work is its emphasis on the costs or drawbacks of criminal law.²⁰ When Husak writes about the costs of criminal law, there arises a conception of law richer and more complex than a set of formal liability rules. The costs of law arise from the fact that criminal law (like all law) is a human practice. As Husak often emphasizes, criminal law is a product of a state, a distinctively human institution.

The insight that law requires a state is captured by two simple claims about what law is not. First, criminal law is not a manifestation of divine will. Husak’s point is not that the content of criminal prohibitions may deviate from what a divinity might command, although such deviation is surely possible. Rather, Husak is making a point about enforcement: “[B]ecause punishment is administered by the state rather than by God … it is inevitable that the practice of punishment … will be tremendously expensive, subject to grave error, and susceptible to enormous abuse.”²¹ Human institutions are both costly and fallible, and Husak has not allowed theorists to stipulate away those features of human law.

Similarly, Husak has pointed out that criminal law is not a magic wand that makes undesirable conduct disappear. Here his point is not simply that law would be administered by humans, but also that it would be directed at and applied to humans, who may not respond exactly as the lawgiver might wish.²² “In reality, of course, the criminal law … proscribes, but may not prevent. We can safely predict that some people will engage in the prohibited behavior, whatever the law may say. If the statute in question is indeed a criminal law, these offenders will become subject to punishment.”²³ I suspect that many theorists have missed the force of this claim, thinking it obvious that punishment must be justified and thinking themselves to have engaged in just that task. But as Husak insists, it is state punishment that must be justified when we contemplate criminal law. The usual obsessions of punishment theorists—the desert of the offender and the disutility of the prohibited conduct—simply do not exhaust the relevant considerations when punishment takes place within a state. When punishment takes place within a state, we must ask what it will cost to administer, what rights it will infringe, what externalities it will produce, and of course, what errors or abuses are likely to occur.²⁴ And crucially, because states do many things other than impose criminal punishment, we cannot evaluate state punishment without asking about “the justice of other social institutions,” and without comparing criminal sanctions to possible alternatives.²⁵

To Husak’s explicit claims that criminal law is not divine will or magic wand, one might add a third claim implicit in his work: criminal law is not (merely) a concept but a collection of actual human practices. Criminal law is something real people actually do, and a criminal theorist must pay attention to the real world. “To begin to theorize about any subject matter, we must have some means to identify what the theory is about. What are the data about which a theory of the criminal law is constructed? … [B]y what criterion do we identify what counts as the criminal law?”²⁶ With these questions, Husak calls for both a definition of criminal law (the criterion to choose the data), and also attention to empirical evidence of actual practices (the data itself). I have already noted that Husak defines criminal law as those laws that subject a person to punishment, but here I want to emphasize that Husak sees actual laws, not ideal ones, as the data points from which a theorist must proceed. He has often insisted that criminal theory take seriously the content and breadth of actual criminal codes.²⁷ He is not alone in insisting that actual, positive law provides the raw data from which criminal theory begins its work, but he is unusual among theorists in his sustained attention, across decades of scholarship, to the difference between descriptive claims and normative or prescriptive aspirations. Early on, he recognized that both our understanding of law and our ability to evaluate it—and possibly change it—are compromised if we do not keep separate descriptive and prescriptive claims.²⁸

Husak’s insistence on the separation of is and ought suggests a rejection of one specific theory of law—the view that rules should not even be called legal unless they satisfy given normative standards.²⁹ Beyond that rejection, however, Husak did not opine on “what is law,” disclaiming any effort at “grand theorizing” or the identification of “necessary truths about law.”³⁰ Fair enough; I share the view that most jurisprudential efforts to articulate one grand theory of law have abstracted too far from actual practice to be useful. But it is precisely because actual practices matter that I think some attention to the definition of law is necessary. Without some conception of which practices are legal, how do we know which ones are relevant? Without a definition of law to discipline their inquiries, theorists may wind up cherry-picking their data.³¹ In particular, the uglier aspects of actual practice may be dismissed as something other than “criminal law.”

This is exactly what happened in American criminal theory over the twentieth century: discretionary and discriminatory enforcement practices were occasionally noted and bemoaned, but they were treated as irrelevant to the normative evaluation of criminal law.³² Theorists assumed a substance / procedure dichotomy, designating rules of liability as substance and most enforcement mechanisms as procedure.³³ Curiously, punishment, which is undoubtedly part of the enforcement process, was placed on the substance side and deemed a worthy subject for criminal theory. But the legal practices that transpire after the articulation of liability rules and before the imposition of punishment—policing, prosecution, and adjudication—have been ignored by most criminal theorists.³⁴ This part of law, the part called “process,” is arguably the most important, as famously expressed by Representative John Dingell: “I’ll let you write the substance; you let me write the procedure, and I’ll screw you every time.”³⁵

As noted above, Husak defines criminal law as those laws that subject persons to punishment. Without quarreling with that definition, it is important to see that criminal law subjects persons to much more than punishment. As Husak recognizes, criminal law also subjects people to an enforcement process.³⁶ And importantly, many enforcement powers arise not with proof of a criminal violation but with suspicion of one. Thus, a choice to criminalize given conduct – marijuana possession, for example – is a choice not only to subject persons who possess marijuana to punishment, but also to subject all persons whom the police suspect of marijuana possession to possible police interventions.³⁷ These police interventions may include the use of force, even deadly force, and all without proof of any actual violation of a criminal statute. Of course, it is open to theorists to argue that the procedural rules should be otherwise. But we cannot fully understand or assess even the subset of criminal law called “substantive” without consideration of how liability rules generate enforcement powers. Thus, as I have noted elsewhere, investigative (and adjudicative) procedures are not simply new topics for theorists to ponder. They are crucial considerations in the subjects that theorists have long seen as key inquiries of the field: what to criminalize and how to justify punishment.³⁸

By insisting that criminal law is neither an exercise of divine power nor a feat of magic, Husak draws our attention to law as a human practice, and to the actual human practices of contemporary American law. Like other theorists, he gives close attention to punishment, but his work also puts other enforcement mechanisms, including police practices, into the conversation.³⁹ His insistence on criminal law as a state institution invites greater attention to the state more generally, for criminal law is to be evaluated “holistically,” in relation to other state institutions.⁴⁰ In short, Husak has approached criminal law in a way that dramatically expanded the range of considerations relevant to criminal theorists.

But did he go too far? In the approach to criminal theory just articulated are all the seeds of contemporary abolitionist thinking. When we see that criminal law is human, it is easy to see the ways in which it is all too human. When we take actual legal practices seriously as the data about which to theorize, we see severe punishments, coercive policing, and grave racial disparities. And when we insist on the relevance of law to criminal theory, all of law and all of the state come into view. And when our field of vision includes an entire state and all of its legal institutions, criminal law in particular may not seem as necessary or desirable as it once did.

Skepticism, Faith, and Critical Theory

In the 1980s, Husak set his sights on something called “orthodox criminal theory,” and he sought to articulate, from a critical perspective, something he called “revised criminal theory.”⁴¹ He began with the actus reus requirement, “which occupies a privileged position at the very heart of orthodox criminal theory.”⁴² For the present essay, my interest is not so much the substantive argument that control rather than an act is more plausibly seen as a requirement for criminal liability, which Husak later developed further,⁴³ but instead Husak’s critiques of orthodox thinking. He charged that orthodox theorists “venerated” the act requirement as an article of faith, adjusting their analysis as necessary “to assure the inviolability of [the act] requirement.”⁴⁴ Proving the “truth” of the act requirement was more important to orthodox theorists than giving an accurate account of existing law.⁴⁵ Again, what is most important for purposes of this essay is not whether and how Husak differed from orthodox theorists on the question whether criminal liability requires an act, but rather Husak’s critique of a faith-based methodology. Here is Husak’s statement of a better theoretical approach:

The philosopher of criminal law who hopes to assess the actus reus requirement should resist the extraordinary deference shown by orthodox theorists toward the principle. From a critical perspective, those analyses of the concept of an act that are designed to preserve the inviolability of the requirement are question-begging. Nor should we accept the requirement without at least a rough understanding of what we have accepted. Finally, we must not succumb to the temptation to construe the principle as a tautology.⁴⁶

Suppose that this methodological orientation were extended not just to the claim that criminal liability requires an act, but toward the full subject of criminal theory—to criminal law itself. The revised advice for the theorist would look something like this:

The philosopher of criminal law who hopes to assess [the criminal law] should resist the extraordinary deference shown by orthodox theorists toward [the institution]. From a critical perspective, those analyses of the concept of [a crime] that are designed to preserve the inviolability of [the criminal law] are question-begging. Nor should we accept [the criminal law] without at least a rough understanding of what we have accepted. Finally, we must not succumb to the temptation to construe the [field] as a tautology.

This revised statement captures the critical methodology that I have outlined in the previous section, and that informs much of Husak’s oeuvre.⁴⁷ Strikingly, though, when Husak has considered directly the question whether to approach “the criminal law” itself with deference, rather than any specific part of it, he has adopted a position of deference and urged others to do so as well. As noted at the outset of this essay, he identified as the function of criminal theory “to improve the content of the criminal law from a moral perspective, not to abolish it or to transform it into something that it is not.”⁴⁸ There appears to be a distinction between some unified concept of “the criminal law,” on one hand, and the various component parts of criminal law, on the other. To “the criminal law” Husak grants not just a presumption of legitimacy but a conclusive presumption. In contrast, the subsidiary parts of criminal law—even or especially those that hold a “privileged position” such as the act requirement—could and should be subject to ruthless skeptical critique.

This distinction between “the criminal law” and its subsidiary components lurks in the background of Husak’s recent critique of “criminal law skepticism,” which I will call CrLS for short.⁴⁹ CrLS is not simply skepticism about particular uses of criminal law or specific doctrines; Husak distinguishes his targets of critique from those who merely “urge caution or a more judicious use of the criminal law.”⁵⁰ Rather, “the thrust of criminal law skepticism is more sweeping and radical: it presents reasons to doubt that the criminal law as it is constituted at present should continue to survive at all.”⁵¹

Who are the criminal law skeptics? In describing the view he aims to critique, Husak uses two slippery phrases: the criminal law and as it is constituted at present. Depending on how we interpret the latter phrase, every criminal theorist could be a criminal law skeptic, including of course Husak himself. Husak has some narrower group of thinkers in mind, but again, the parameters of this group are not clearly specified. CrLS is depicted as both a recent phenomenon and a scholarly one (indeed, it is presented a newly fashionable ivory tower enterprise not endorsed by sensible real people), but when Husak does name names, he cites older scholarship and more recent writing in the popular press by non-academics.⁵² At some points, Husak seems to direct his critique at those who speak of abolition of police, prisons, or all of criminal law, but he also cites scholars who simply emphasize continuity between criminal law and other forms of law.⁵³ At the same time, several law professors who have openly embraced and theorized abolition or at least “skepticism” vis-à-vis criminal law and punishment are not cited.⁵⁴ I note these ambiguities about the identity of Husak’s targets not to question the phenomenon of CrLS, which I think is real (and welcome). But I do not think Husak has yet engaged much with contemporary theoretical arguments from abolitionists or the “abolition adjacent.”

Indeed, Husak frames his critique of CrLS as the identification of various valuable functions of criminal law that skeptics have overlooked.⁵⁵ Without rehearsing Husak’s full list, we should note that it is full of issues that are in fact addressed by abolitionists and skeptics, as part of arguments against specific criminal practices or against criminal law more broadly. For example, Husak charges that skeptics fail to appreciate the expressive function of criminal law, when in fact its expressive condemnation—the deep stigmatization of “criminals”—is precisely what many skeptics want to eliminate.⁵⁶ And Husak identifies “the powers of legal officials,” including the power of police to stop and frisk, as another valuable function of criminal law, when in fact skeptics and abolitionists have been explicit in their critiques of stop-and-frisk as well as police authority more generally.⁵⁷ So too with Husak’s arguments about proportionality and collateral consequences: skeptics have not overlooked these topics, but simply disagree with Husak about whether criminal law is providing value in these areas.⁵⁸

For many reasons, Husak’s critique of CrLS is unlikely to convert skeptics to believers. It is perhaps best read as a recitation of a catechism, an expression of faith in criminal law amid a new clamor of non-belief. Husak might resist this characterization, but recall that all along he has seen the role of criminal theory as the betterment of criminal law, not its abolition or radical transformation. The presumption of legitimacy that Husak grants criminal law is one manifestation of an ambivalence in his work. As discussed above, he often endorses a legalistic conception of criminality, in which criminality is a specifically legal designation. But Husak also sometimes links “the core” of criminal law to an account of culpable wrongdoing that evokes an extra-legal, moralistic conception of criminality.⁵⁹ Once one imagines “criminality” to correspond to immorality or moral culpability, it may be hard to shake the faith that criminal law is itself a moral good.

A criminal law skeptic myself, I am wary of arguing with the faithful.⁶⁰ And ultimately, arguing about how much value to find in “the criminal law” may be a fool’s errand. I am also a skeptic about any call to abolish the criminal law, at least in those terms: I doubt that there exists one coherent institution called “the criminal law” standing ready to be abolished.⁶¹ Many of those who study “the” criminal law have found an unruly array of practices that proves resistant to “grand theorizing.”⁶² Many of those who did develop grand theories did so only by leaving aside the empirical realities of actual criminal laws. I am a skeptic about the very existence—to say nothing of the legitimacy—of a unified and therefore destructible institution called “the” criminal law, but I am not a skeptic about the existence of criminal laws, nor about the value of criminal theory. We can and should seek to understand and evaluate the unruly practices that are collected under the label criminal law, perhaps beginning our work with an account of the terms “crime” and “criminal.”⁶³

If I am right that “the” criminal law is a theoretical fiction, then there may not be much point in arguing about whether to abolish the criminal law writ large. Rather, we should analyze specific statutes, doctrines, or legal practices. We should be attentive to the ways in which various types of criminal law with one another and with civil laws. In evaluating specific laws or doctrines, we should, following Husak, resist “extraordinary deference” to existing orthodoxy; we shouldn’t beg key questions by committing at the outset to the inviolability of some abstraction called “the criminal law.” It may then turn out that we recommend abolishing specific statutes, doctrines, or practices. Abolitionist scholarship may sometimes be insufficiently precise about what to abolish, but I see no benefit to closing our minds to the possibility that the ultimate answer will be everything now labeled criminal.

All the same, I read abolitionist scholarship with caution, for some of it seems to replace one faith with another. Husak and abolitionists ask the same question—“What would the world look like without criminal law?”—and reach nearly opposite conclusions, perhaps thanks to different tenets of faith.⁶⁴ Husak sees a dystopia: rampant violence and cruelty that legal institutions are unable to check. Abolitionists sometimes portray something closer to utopia: a state that guarantees sufficient equality, and sufficient material resources, to make criminal law unnecessary.⁶⁵ As many abolitionists recognize, abolition of many or all components of current criminal law can’t happen without enormous reliance on the state, the same set of institutions that has disappointed us in so many ways. Notwithstanding these prior disappointments, abolitionists have faith in the possibility of a more egalitarian state, while Husak has faith that a reformed criminal law is necessary to protect public safety and communicate shared judgments to shape human behavior.

I share neither of these faiths, but it does seem plausible to me that whatever horrible forms of domination ruling powers might think up when criminal law is off the table will be less terrible than the domination the state wields when criminal law is an option.⁶⁶ Plausible, but not certain, so we should proceed with caution rather than faith. My own suspicion is that humans are neither evolved enough to be trusted with criminal law nor evolved enough to do without it. We are faced with a tragic dilemma, and we’ve lived a long time on one horn of it. For many if not most pieces of criminal law, there is probably a good argument to give abolition a shot.

I close with a thought about the moderns, the ancients, and Nozick’s first question for political philosophers. Husak has been a criminal theorist for moderns, placing the individual before the collective.⁶⁷ As he has sometimes recognized, such an approach makes criminal law much harder to justify.⁶⁸ It is worth remembering, I think, the ways that actual states changed as political theory shifted from the ancients to the moderns. For all the radical potential of the concept of the autonomous individual whose consent was necessary for legitimate political authority, no society did in fact reject all government and embrace anarchy. Some rulers were overthrown, but all were replaced. Nevertheless, the invention—or discovery—of the individual in a state of nature did transform states. It did generate new demands for accountability that produced new institutions; it changed the forms of government and what we expect from government. It is possible that a shift in baselines in criminal theory, from an assumption that criminal law is legitimate to a skeptical demand that criminal law prove itself, could have similar effects. A shift in baselines may not lead to the end of criminal law but to changes in its form as radical as the changes that modern political theory brought to the state itself.