The constitution of criminal law: Justifications, powers, and authority

This thesis concerns the way in which the criminal law regulates not only the conduct of ordinary citizens acting at arm's length from the state, but also the actions of state officials. I argue that criminal law justification defenses are the primary mechanisms by which the law integrates the regulation of state conduct into ordinary criminal law. Thus, justification defenses are best understood as grants of discretion to officials to act in furtherance of the state's tasks, including law enforcement. Because they are formulated in terms of grants of discretion, justification defenses introduce an element of public law into ordinary criminal law: the core role of courts in reviewing claims of justification is to ensure that the public officials acted within their authority, fairly and reasonably.;The account of criminal law put forward here is fundamentally at odds with the dominant traditions in criminal law theory. In addition to arguing for this view, I also suggest that there are good reasons---both doctrinal and normative---to reject the tradition "legal moralist" account of criminal law. According to this view, criminal law's role is to identify moral wrongdoing and to call wrongdoers to account. It gives no special role to those who are carrying out the necessary task of enforcing the law in the name of the state.;I also argue that the best way to understand the structure of public law discretion is under a model of fiduciary duties: public officials have the authority to make decisions in the name of the people but only insofar as they exercise that authority in the best interests of the people. Following on this insight, I suggest that the German constitutional court's decision in the famous "plane case" was in keeping with approach to justifications and the state's role. I also argue that the state's freedom to outsource policing functions to private contractors is limited by its duty not to delegate essential state functions.;Finally, I argue that the model of justification put forward here requires that certain key policing functions be undertaken by state officials rather than by private contractors. Although it is acceptable for private parties to take over public functions when there is simply no other alternative, it would undermine the legitimacy of the policing function if it because the norm for private actors to take on these essential state functions.