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date: 22 September 2020

Abstract and Keywords

Contemporary criminal law is best understood as a species of constitutional reflection. This chapter begins by considering the way in which substantive criminal law has become a laboratory for the constitutional – a site for reflection on central constitutional themes, including sovereignty and state violence; the anthropology of the legal subject; the rule of proportionality; and the relationship between judgment, discretion, and mercy. It then explores how issues that have long troubled the criminal law have translated into a constitutional register, examining constitutional debates surrounding the limits of the criminal law, requirements for fault, the structure of criminal defences, and standards for punishment. Ultimately, the chapter identifies a challenging irony: that despite this shift in the imaginative relationship between criminal law and the larger legal structure, whereby criminal law has been tethered to questions of constitutional justice, much criminal justice is still left to be done in spite of the law.

Keywords: criminal law, constitutionalism, constitutional law, criminal liability, sovereignty, state violence, rule of proportionality, criminal responsibility, criminal defenses, just punishment

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