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20 Theoretical Criminology 3 (2016)

handle is hein.journals/thcr20 and id is 1 raw text is: Article Theoretical Criminology 2016, Vol. 20(l) 3-20 Penal subversions: VW hen is a The Author(s) 2015 Reprints and permissions: punishment not punishment, sagepub.co.u/journalsPerissions.nav DOl: 10.1177/1362480615598830 who decides and on what tcr.sagepub.com grounds? OSAGE Lucia Zedner University of Oxford, UK Abstract Current criminological interest in the boundaries of penality has done much to shed light on the definition and meaning of punishment. Even the central case of punishment, its aims and purposes are contested, so it should not surprise that the boundaries are also disputed. As states seek to evade the criminal process and its protections by resort to civil and administrative measures, the line between formal and informal criminal penalties blurs. In Europe, the courts have sought to reassert the protections of the criminal process by looking behind the labels to insist on substance over form in deciding what is a punishment. In so doing, they have re-affirmed the boundaries of penality as a vital means of providing protection against arbitrary government. Examining these turf wars reveals a constitutional struggle over the very authority of the state to punish. Keywords Courts, criminalization, human rights, penality, punishment Introduction Punishment is a particularly problematic exercise of state power over the individual and, as such, it requires special justification. To talk of punishment without regard to what distinguishes it from other forms of coercion, risks undermining the possibility ofjusti- fication and, no less importantly, critique (Ristroph, 2015). As states develop new Corresponding author: Lucia Zedner, Faculty of Law, Centre for Criminology & Corpus Christi College, University of Oxford, Oxford OXI 4JF, UK and Faculty of Law, UNSW, Sydney NSW 2052, Australia. Email: lucia.zedner@law.ox.ac.uk

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