Criminal law: Political or moral? Defending a complementary conception of criminal law in the age of the administrative state

Recent years have seen a turn in criminal law theory toward proposals that offer accounts of criminal law as public law, as an alternative to what might be thought of as moralistic conceptions of criminal law.¹ In Criminal Law in the Age of the Administrative State, Vincent Chiao offers a rich and comprehensive account of what such a public law account should look like, and why such an account should be adopted. Per Chiao's proposed account, criminal law demands a fully political standard of justification, meaning that criminal law and its institutions ought to be justified in political terms. This political standard of justification can be drawn from a variety of views about what public justification requires-whether liberal, libertarian, welfarist, egalitarian, utilitarian etc.-or on his preferred view, the political ideal of anti-deference. Setting aside Chiao's particular account of anti-deference, this article addresses Chiao's basic proposal that a public law conception of criminal law should be preferred over existing morally-oriented paradigms. It questions the opposition set up between these two frameworks for justification and suggests that the two should be seen as complementary rather than competing conceptions of criminal law.