This chapter discusses how a criminal justice system can operate without state input. Conventional wisdom states that the state is an essential aspect of any criminal justice system, based on three assumptions: first, only the state can delineate exactly what acts constitute a crime; second, the purpose of the criminal law is a collective, society-wide statement of condemnation against certain acts; and third, coercion and violence are often used in a criminal justice system and the state has a monopoly on the leigitmate use of force. The chapter rebuts each of these assumptions. First, the chapter notes that, through a combination of natural law and societal mores, there is a consensus on what actions should be considered criminal, even without a state legislature promulgating specific crimes. Second, private responses to criminal activity can further society's goals of deterrence and retribution, even though they also fulfill the needs of the private actors. Third, many responses to criminal activity do not require coercion or force and, even if they do, the state has authorized private uses of force in certain circumstances.

This chapter traces the history of each phase of private law enforcement, from private policing, to private adjudications, to private dispositions (also known as vigilante actions).The chapter points out that, throughout history, private parties have played a larger role in the criminal justice system than most people expected.

In the previous chapter, I explained that we may need to reconsider familiar formulations of fundamental principles when we apply them in new contexts. In this chapter, I ask how we might even embark on such evaluations. A traditional and commendable scholarly reflex is that we must ‘ground’ our analysis in certain and self-evident bedrock. I will show the infeasibility of this search for secure moral foundations.

I suggest a non-foundational approach, using a coherentist method: we do the best we can do with the available clues and arguments. The clues include patterns of practice, normative arguments, and casuistically-tested considered judgments. We can work with ‘mid-level principles’ to carry out fruitful analytical and normative work.

The coherentist approach accepts that our principles are human constructs, that our starting points are contingent, and that we have no guarantees of ‘correctness’. Discussion of fundamental principles is not a matter of ethical computations; it is a conversation. It is a human conversation, a fallible conversation, and nonetheless an important conversation. I also argue that coherentism offers the best explanatory and justificatory account of the method used in most criminal law theory. In other words, it is the best theory of criminal law theory.

In this chapter, I demonstrate the problem to which the rest of this book proposes a solution: namely, the need for more careful deontic reasoning. I will focus on certain distinctive habits of reasoning that have often recurred in ICL, which have a tendency to undermine compliance with deontic principles.

All legal systems sometimes generate doctrines that appear to conflict with stated principles. However, in national systems, the clash tends to be openly between liberal principles and ‘law and order’ considerations. I argue that ICL discourse often features an additional and interesting dynamic. In ICL, the distortions often result from habits of reasoning that are progressive and appropriate in human rights law and humanitarian law, but which become problematic when transplanted without adequate reflection to a criminal law system. I highlight three kinds of such reasoning: interpretive assumptions, substantive and structural assumptions, and ideological assumptions. These habits of reasoning were more prevalent in the early days of the renaissance of ICL than they are today. It is still valuable to discern and dissect these habits of reasoning, because their legacy continues, because they still recur today, and because they help show the value of attending to reasoning.