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Dubber on Treason

By Lawrence Solum

Markus D. Dubber (University of Toronto - Faculty of Law) has posted The State as Victim: Treason and the Paradox of American Criminal Law on SSRN. Here is the abstract:

The American law of treason has remained unchanged since the Founding Era of the New Republic. The Founding Era's definition of treason itself did not significantly revise the definition, and more important, the conception of treason reflected in the English Treason Act of 1351. Treason always was, and in US law remains to this day, the breach of the duty of allegiance (or fealty or loyalty) that the subject owes the sovereign, any sovereign.

What's more, treason is paradigmatic of American criminal law because it is both the ultimate victimless and the ultimate victimful crime. Treason is victimful because it is the offense most directly aimed at the authority of the state, and the state, as the abstract holder of amorphous sovereignty, is the ultimate victim of crime conceptualized as an offense against the sovereign. At the same time, treason is the ultimate victimless offense because it is explicitly not aimed at a particular person (say, the English king) and, more fundamentally, because the very existence of the state, and of the sovereignty it wields, is denied.

In other words, as both victimless and victimful, treason highlights, and personifies, the central paradox at the heart of American criminal law. The state, and its sovereignty, are both nowhere and everywhere, and so is treason, as the ultimate offense against the state as sovereign.

Full post as published by Legal Theory Blog on December 28, 2009 (boomark / email).