Should the criminal law be a last resort?

Douglas Husak

Chapter 8 in Research Handbook on Penal Policy, 2026, pp 154-170 from Edward Elgar Publishing

Abstract: Several legal philosophers hold that “the criminal law should be a last resort.” I call this proposition The Slogan. Chapter 8 supports two themes. First, I note that fewer contemporary criminal law theorists appear to endorse The Slogan. What was once advanced as a progressive proposition is now cast as a timid and conservative response to the pathologies of criminal justice. The more urgent challenge, it seems, is not to justify why the criminal law should be used as a last resort, but to justify why the criminal law should be used at all. My second theme contends that enormous uncertainties emerge in attempts to interpret The Slogan and apply it to particular contexts. Once it is explicated, even charitably and sympathetically, I argue that although The Slogan should not be banished, it is of minimal value in assisting the meaningful reform so urgently needed in our systems of criminal justice.

Keywords: Last resort; Abolitionism; Punishment; Crime prevention; Expressivism; Penal policy (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035308521
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