Anat Scolnicov

The constitutional basis of the criminal law reflects a conception of relations between citizen and state underpinned by the criminal law. For Beccaria, the conceptual basis for the state, and therefore for the criminal law, is the social contract. The validity of the social contract as basis for the criminal law is examined using one offence – treason, as this offence most directly reflects citizen-state relations. If the criminalization of treason cannot be justified by the social contract theory, then, logically speaking, this reflects either a problem with the criminalization of this offence, or it is an indication of a more general problem with the social contract as a basis for ordering state-citizen relations through the criminal law. Or, indeed, both. In this paper I analyze two problems arising out of a social contract justification for the treason offence: 1. What is the justification for this offence when the social contract has been breached already, if government oversteps its powers? 2. Does contract offer a consistent explanation for how we treat treason within our political unit and outside of it. Keywords: Treason, Philosophy of criminal law, Criminalisation, Beccaria

This article asks whether the offence of treason can be justified in a Liberal state. The paper examines the treason offence, which, strangely for an offence that exists in every state and is often considered the gravest of offences, has not engendered much theoretical discussion. In criminalising the most direct challenge to the authority .of the state, treason presents a serious test to any theory of criminalisation as well as to any theory of the state. the offence raises fundamental questions about the relationship between the state and its subjects: does the offence presuppose that legal subjects owe the state loyalty—and is this an obligation that may be enforced coercively. Keywords: criminal law, legal theory, criminal offences, treason, criminal law theory