Conclusion

Abstract

This concluding chapter reflects on what has gone before. The idea that a democratic state’s reason for being is to authoritatively resolve disagreements among free and equal citizens over the demands of justice suggests that peace, not justice, is the first virtue of social institutions, including the institutions through which the state imposes punishment. It then ponders, in light of the actus reus and mens rea requirements, the legitimacy of state punishment as currently administered in the various jurisdictions of the United States. Judged only in terms of the actus reus and mens rea requirements, it seems those jurisdictions earn passing grades. Existing rules and doctrines, enacted in the exercise of democratic authority, appear to keep the state’s power to ascribe guilt largely within the bounds of legitimacy. One might nonetheless think those jurisdictions illegitimately criminalize forms of conduct they have no authority to criminalize, or that they illegitimately impose punishments so severe as to exceed their authority. These questions are left for others to address.