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1 Jrslm. Rev. Legal Stud. 3 (2010)

handle is hein.journals/jerusrls1 and id is 1 raw text is: Is THE CRIMINAL LAW (so) SPECIAL? COMMENTS ON DOUGLAS HUSAK'S THEORY OF CRIM1NALIZATION Re 'em Segev* INTRODUCTION The first part of this paper includes a brief outline of Douglas Husak's book on criminalization, as a background for the comments.' The second part of the Paper includes several remarks on various aspects of the book (not necessarily on every point mentioned in the first part). I. HUSAK' S ARGUMENT Douglas Husak develops a theory of criminalization, namely, one that determines when it is justified to impose criminal liability [3]. Husak defines criminal liability as punishment by the state [77-78] and punishment as the intentional infliction of hard treatment and censure [92-93]. Husak's theory is limited in two respects. First, he focuses on the negative, rather than the positive aspect of a theory of criminalization, namely, the identification of unjustified, rather than justified, offenses [18]. Second, excessive criminal law has various unwelcome implications,2 and Husak focuses mainly on the injustice to persons who are convicted and punished without justification [ 11-14]. Husak argues that criminal liability (punishment) involves an infringement of a right not to be punished [57]. He assumes that this infringement could be justified, but argues that ordinary or small utilitarian reasons (or advantages) cannot justify punishment [92, 95, 100, 101]. Lecturer, Faculty of Law, The Hebrew University of Jerusalem. DOUGLAS HusAK, OVERCRIMINALIZATON: THE LMiTS OF THE CRIMNAL LAW (2008). Bracketed numbers in the text refer to page numbers in this book 2 Some of the cost involved in unjustified law is also a cost of justified law.

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