What we do to each other: criminal law for political realists

This thesis contributes, and critically responds, to what has been dubbed the ‘political turn’ in criminal law theorising: the turn away—or so its protagonists claim—from the paternalistic notions of ‘legal moralism’, which have dominated the debate since the early 1970’s, and towards a more rigorous understanding of criminal justice as a set of institutions operating under public law. Drawing and expanding upon the key themes and insights emerging from the realist revival in contemporary political thought, a line of research trying to re-claim the ground lost to ‘political moralists’ like John Rawls, it makes two distinct and original interventions in this evolving literature: (i) it exposes the conceptual continuities that run between openly moralist accounts of criminal law and those of liberal descent, and (ii) it puts forth a genuine alternative, based on a conception of legal legitimacy that is embedded within, not external to, the conflictual practice of politics. Viewed through this new, realist lens, the criminal law and the consequences which may attach to its violation reveal themselves not as timeless, inevitable expressions of what is ‘good’ or ‘right’ or ‘reasonable’, as vehicles for condemnation and punishment, but as a series of contingent political settlements—compromises designed to facilitate collective action—and thus but one means (among many) for governments to respond to difference, disagreement, change, and the ongoing struggle for representation.