On the ‘Specialness’ of the Criminal Law

Abstract

This comment begins with some thoughts on the question of ‘criminal law’s exceptionalism’ and on what (seems to) motivate the question. It then moves on to a brief survey of some candidate criteria for the distinctive nature of the criminal law.Footnote1 The argument is that there is a defensible account of criminal law and punishment as distinctively valuable, but that this account does not have to be ‘apolitical’ and, perhaps even more importantly, it does not provide reasons for criminal law and punishment to be excluded from evaluation as instruments of public policy that may, or may not, be all things considered justified.