A criminal law for semicitizens

Abstract

A significant number of influential philosophical theorists of punishment argue that only those who enjoy the status of citizenship in a political community can legitimately be punished by that polity. Yet, the strength of this approach wanes when these scholars treat individuals who clearly do not respond to their idealised conception of citizenship (such as asylum seekers, disenfranchised offenders, and tourists) as if they were fully fledged citizens. This article argues that ‘citizen criminal law’ can only be theoretically feasible in today's world if it abandons the binary position between ‘full citizens’ and ‘noncitizens’ and recognises the everlasting presence of certain types of ‘semicitizens’. Thus, citizenship should be conceived as a scalar phenomenon. Based on a typological approach to the different forms of semicitizenship, we argue that the strength of the political bond between offenders and the political community must be considered when gauging punishment severity. The weaker the bond, the more lenient the punishment should be.