This article considers Gˇnther Jakobs' controversial theory of 'the criminal law of the enemy' (Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than normative principles, the article traces the implications of Jakobs' central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion and preventive orders in criminal justice. It identi¢es the various ways in which these current alternatives to the criminal sanctioning process link with neo-liberal technologies of government by connecting Jakobs' thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta-regulatory mechanism.

When Jakobs first presented his theory of the “criminal law of the enemy” (Feindstrafrecht) at the turn of the millennium, the ensuing debate drew much attention across Continental Europe. Following the initial wave of interest in Feindstrafrecht, it is now possible to give it a more sober assessment by carefully situating it within the broader framework of the communicative theory of criminal law and punishment which Jakobs has developed. After an overview of the evolution of the theory of the criminal law of the enemy in Jakobs’ work, the chapter presents the main features of his communicative account of the criminal law as a mechanism which generates and stabilizes normative expectations, thereby facilitating everyday social interaction. It analyzes the underlying conceptual commonalities linking Jakobs’s communicative theory and Feindstrafrecht, while tracing the dialectical interplay between freedom, law-abidingness, and coercion in his account of inclusion and exclusion within the criminal law.

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