Overcriminalization as Vulnerable Citizenship

Abstract

The paper situates Douglas Husak's normative theory of the limits of criminalization in its contemporary political context, one in which the crime victim is the representative subject of law. It is argued here that new U.K. terrorism and money-laundering offenses prove compatible with the constraints in Husak's theory, once they are understood as protecting the vulnerabilities of the potential crime victim. On this basis, the possibility is raised that Husak's theory may tend to legitimate rather than limit much of contemporary "overcriminalization," notwithstanding both his express intentions to the contrary and the liberal intellectual resources on which he draws. The implied tension in liberalism is considered and other approaches to the problem are suggested.