The Legitimate Scope of Criminal Law: A Question for Legal History?

Abstract

Lindsay Farmer argues that criminal law theory is too abstract and decontextualized to achieve the task it sets for itself. In order to articulate the legitimate boundaries of criminal law, theorists must consider specific legal rules in historical context. Farmer declines to announce a new, universal theory of the proper scope of criminal law, but he shows that studying the institutions and social functions of criminal law over time can generate normative insights. This review uses the example of prostitution to explore these claims. The changing cultural figure of the sex worker—from public nuisance, to autonomous free agent, to vulnerable and in need of protection—has figured in both the contraction and expansion of criminal law. Equally significant to prostitution debates is Farmer’s claim that criminal law emerged as a branch of public law, rather than through state appropriation of private vengeance.