One such alternative view is that of the German legal theorist, Gunther Jakobs. Jakobs view is that the function of criminal law is to allow individuals to engage with each other in complex modern societies, specifically where mechanisms of trust no longer operate so as to form the foundation for social interaction. Individuals must however trust that the validity of the norms of the criminal law is generally recognised, and presumably that breaches of the norms will be enforced. Punishment is thus paradigmatically directed at communicating with citizens about the breach of norm and need to cultivate law-abidingness.
|An Enemy of the State?|
Such views have, as you might expect, been controversial. It offends against the liberal idea that all citizens must be treated with equal concern and respect and that rights and procedural protections should apply equally. Moreover, the central concept of the 'enemy' is vague and ill defined, and seems to open the door to the possibility that individuals or groups might be ostracised or excluded in law because their lifestyle or conduct is not accepted or tolerated by other members of the community.
So where does this leave us? Is there anything of value to be taken from this account? Well, as a starting point I think it is necessary to distinguish between the descriptive and normative elements of the theory. As a matter of fact certain groups or communities are excluded and there has been a turn in the criminal law to highly punitive measures directed at such groups. It is surely important to recognise these features of the law and to ground any normative theorising on an understanding, not of an ideal law, but the law as it operates in modern society. This does not entail acceptance of the conclusion that it is justified to treat such 'enemies' differently. Equally, I think that there is something in the placing of trust in norms at the centre of the theory that is worth thinking about. While it appears to be empty of content (trust in the validity of any norms irrespective of content?) it surely offers possibilities for a richer account of the criminal law. We trust people in different ways because of their roles in society and the kind of relations that we have with them. In these terms some of the goods or interests protected by the criminal law can be reconceived as breaches in certain kinds of trust, whether this be at an individual level or in relation to the negligent carrying out of certain specialised activities. This might offer a fruitful avenue for thinking about criminal law in the modern state.