Unjust States: Punisher Relativity and the Limits of Criminal Law

The argument has been made, most notably by R.A. Duff, Tommie Shelby and Victor Tadros, that socially unjust states lack the authority to punish the people whose social disadvantage they have brought about. In such cases, socially unjust states should therefore refrain from punishing. Call this the penal authority thesis. I argue that the penal authority thesis relies on a punisher relativity claim. The assumption is that the content of enforceable law depends on the normative standing of the punisher. This distinguishes the penal authority argument from a different position – call it the penal incapacity argument – according to which socially disadvantaged people lack the required capacity for being punished, and so should not be punished or be punished less. The aim of this paper is to show that the punisher relativity claim has an implication some might consider problematic. My argument runs as follows: if we accept the punisher relativity claim and, more generally, also support the legal equality principle, it follows that unjust states should not only refrain from punishing the socially disadvantaged, but that they should equally refrain from punishing the socially non-disadvantaged. This might drastically narrow down the (effective) limits of criminal law under socially unjust states.