The Place of Punishment within the Criminal Justice System

ABSTRACT.In the present paper, I focus on the scope of the criminal law, the expressive functions of the criminal law, and the shifting nature of the criminal law. The theory that I shall seek to elaborate here puts considerable emphasis on the costs and the benefits of criminal justice policies, the rules instituting legal punishment, victimization of human beings, and the prohibition of genocide.Keywords: criminal law, genocide, international justice, punishment1. IntroductionIn this paper I am particularly interested in exploring breaches of international criminal law, corporate liability for international crimes, and the capacity of punishment to prevent criminal conduct. The mainstay of the paper is formed by an analysis of the legitimacy of international justice, crime's existence and representation at a global level, and the conceptualization of global crime victims.2. The Expressive Functions of the Criminal LawRoman execution and its pattern of application reveal the logic of Roman imperialism. Roman execution's ordering principle1 is social status. The Roman ritual of execution is a ritual of individual and communal empowerment. The gladiators were peoples marginal to the Roman order. Roman authority can assert itself only through mimicry.2 The Roman republic murder was not a crime (the word crime is unrepresented in Roman republican vocabulary). Murder was not regulated by Roman private law. The Romans believed that intentional killing was wrong under some circumstances, and granted the right to kill to high magistrates. No abstract govermnent was responsible for putting people to death. The increasing judicial mechanisms of the government did not punish Roman citizens with death. The attitude of the Romans toward justifiable homicide for the protection of the res publica was ambivalent.3 Roman criminal trials generally ended in conviction about as often as in acquittal. The presumption of innocence was not a formal principle in Roman law. The prosecutor in a Roman criminal trial4 did not speci~ exactly what charges he would make.5 The Rome Statute does not provide jurisdiction to try corporations for breaches of international criminal law. The international criminal law system provides the theoretical grounding for states to assert jurisdiction over international crimes wider than the International Criminal Court (ICC).6Measuring the capacity of punishment to prevent criminal conduct is an elusive undertaking. The legitimacy of international justice can facilitate the internalization of accountability in the political culture.7 Crime cannot be understood outside its social context. Crime's existence and representation at a global level8 argues for the unity and generalization of social problems. A victim constituency makes sense in terms of the stated aims of international criminal justice. The conceptualization of global crime victims should be expanded from their current more procedurally restricted standing. Jurisdiction over crime is the quintessential question of federalism and state power. Focusing on the costs and the benefits of criminal justice policies improves decision-making.9 The scope of the criminal law and the scale of imprisomnent have expanded. The violent character of certain criminal offenses is not entirely pre-legal. The public is hardly satisfied with the criminal justice system as it actually operates.10The criminal law is addressed primarily to us as citizens of the polity whose law it is, purporting to mark culpable public wrongdoing as wrong. The criminal law's norms include honesty and responsibility for one's actions. The criminal law insists on moral culpability, in the form of mats rea and voluntariness. Innocent defendants owe moral duties to themselves not to treat themselves unjustly. Offenders who publicly accept responsibility for their crimes are more likely to internalize that responsibility than those who persist in denying guilt. …