Abstract

Political theorists imagine a world without government in order to assess the legitimacy of existing states. Some thinkers, such as philosophical anarchists, conclude that in fact no state can be justified. Should theorists of criminal law similarly imagine away the very thing they seek to theorize? Doug Husak has claimed that “the object of criminal theory is to offer suggestions to improve the content of the criminal law … not to abolish it.” But this Essay argues that abolitionist-leaning scholarship reflects several welcome developments in criminal theory: a concern with the state; attention to empirical data and the distinction between normative claims and descriptive ones; recognition of enforcement as an essential element of criminal law; and above all, a demand that criminal law prove itself—a refusal to grant to criminal law a presumption of legitimacy. These theoretical orientations did not appear for the first time in abolitionist scholarship. In fact, all are calling cards of Husak’s own work, and cause to celebrate it.