Volume 70 Issue 2, spring 2020, pp. 177-193

After reviewing a great deal of ground opened up by Vincent Chiao’s version of the public law approach to criminal law, I will explore my biggest reservation, which is that, even with Chiao’s significant effort to recontextualize the role of criminal law and place a heavy burden of proof against criminalization in the conditions of modern societies, it still leaves too much room for the powerful irrational forces that drive punitiveness in societies with long histories of slavery, colonialism, and racist social policy. My biggest concern is with the principle of negative reciprocity – the view that cooperative systems will collapse if the agreed upon terms of cooperation are regularly violated without consequences. It is a Trojan horse that opens a door to punitiveness through the many barriers he sets against criminal law in the rest of the book.