THE LEGITIMACY OF CRIMINAL LAW AND THE PERFORMANCE CRISES OF PENALITY

Abstract The legitimacy of state punishment has long been debated to justify the extreme form of government-authorized coercion that is criminal law. Rather than focusing on the abstract legitimacy of criminal law, this article examines another dimension of the debate: the legitimacy (or lack thereof) arising from the dynamics of substantive criminalization. Specifically, it addresses the “performance crises” of penality—enforcement-related failures in the implementation of the criminal law. The article identifies and discusses three distinct typologies of crisis in the deployment and enforcement of penal statutes: crises of hyper-intensity, crises of hyper-selectivity, and crises arising from sentence opacity, each undermining the legitimacy of criminal law in different ways. By addressing this gap in the theoretical literature, the article highlights the critical role of enforcement in shaping normative and policy discussions on substantive criminalization and its impact on the legitimacy of criminal law as a whole. From this perspective, penal legitimacy should be informed by the notion of “penal adequacy”, grounded—depending on the specific type of crisis—in moderation, non-discrimination, and transparency, and, across all cases, in sustainability. This concept highlights a balanced and fair exercise of the state’s penal power—one that is measured, non-discriminatory, clearly communicated, and, overall, capable of achieving its objectives in a sustainable manner.