Criminal Law in a World of States

A new school of theory rejects the traditional story that criminal law ought to be justified on retributivist or utilitarian grounds. Instead, proponents stress the need to anchor justifications for criminal law in a political theory of the state’s authority. Yet this new account gives rise to two unrecognized challenges, which emerge when we turn to the world beyond the state’s borders: it leaves us without an explanation for criminal law untethered to the state (e.g. international criminal law (ICL)); and it relies on an unrealistic conception of the political community, disregarding conditions beyond the state. These challenges have a common solution, which comes into view when we rethink the standard picture of ICL. Far from untethered from the state, ICL is deeply anchored in the state; indeed, it acts to secure the system of states. In doing so, ICL upholds the global conditions necessary for the state as conceived by this new line of criminal law theorists to function.