Principles of Criminalization and the Limits of Criminal Law PDF 2024-2025

Principles of Criminalization and the Limits of Criminal Law Principles of Criminal Law 2024-2025 Dr. Anna Costantini  What kind of conduct can be punished? What objects deserve the crimi...

Principles of Criminalization and the Limits of Criminal Law Principles of Criminal Law 2024-2025 Dr. Anna Costantini  What kind of conduct can be punished? What objects deserve the criminal law’s attention? The Problem of Criminalization Principles that guide legislative deliberations about criminalization  The Politics of Criminalization Criminalization = decision to criminalize certain behaviour // the process of transforming certain (currently) non-criminal behaviour into a criminal offence Criminalization processes require justification (and limits): if it’s true that, in a liberal state, citizens possess a general right not to be punished Great variety of criminal offences: from petty crimes to homicides, child molestation, fraud, environmental pollution, and so forth → difficult to establish general limits for criminal law  PRINCIPLES AND THEORIES OF CRIMINALIZATION Different approaches in legal doctrine: COMMON LAW: principled-approach (e.g. principle of individual autonomy; harm principle) CIVIL LAW: theory of the legal goods These principles and theories have a legitimising function = they provide a rational basis for the decision to criminalize Political issues may also influence criminalization choices  CRIMINALIZATION AND CRIMINAL POLICIES Recent societal changes influenced the criminalization processes: «RISK SOCIETY» (Beck, 1999): Modern societies are permeated by risks Need for protection, safety, security The State as a «risk-management» institution The containment of potential risks and the prevention of harm have become the main goals of criminal law (the latter is more and more concerned with the prevention of future harms than with the retrospective punishment of manifested harm) CULTURE OF «CRIME CONTROL» (Garland, 2001)  CRIMINALIZATION AND CRIMINAL POLICIES MODERN CRIMINAL LAW Process of OVER-CRIMINALIZATION: the risk society and the culture of control have triggered an increase in criminal offences as well as sanctioning mechanisms Use of PREVENTIVE CRIMES (eg in the field of terrorism) From definite individual interests to vague collective interests (public health, security, public peace, etc.) PRINCIPLE OF INDIVIDUAL AUTONOMY Individual autonomy = The capacity to make self-directed and independent choices and decisions Individual autonomy as important building block for criminal liability: criminal law operates on the assumption that human conduct is sufficiently free and independent to base liability on it An individual should not be held criminally liable unless he had the capacity and fair opportunity to do otherwise (H.L.A. Hart)  PRINCIPLE OF WELFARE Individuals together also form a community: need to protect collective interests Principle of welfare = individual autonomy needs to be balanced against the state’s duty to create and maintain the social conditions that allow the exercise of autonomy Possible opposition to, or convergence with, the principle of individual autonomy Risk of political abuse, discrimination and infringment of individual liberties Different emphasis in different criminal justice systems  the HARM PRINCIPLE (or: harm-to-others principle) Common Law Legal Tradition John Stuart Mill (“On liberty” 1859): “The only purpose for which power can ben rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. Criminal intervention can only be justified by the need to defend individuals the State may criminalize only the conduct that causes harm to others  The Harm Principle What qualifies as “harm to individuals”? Non-controversial punishable offences: crimes against person (e.g. murder, rape, assault, …) or crimes against property (e.g. stealing, burglary, larceny, robbery, fraud, …) Requirement of seriousness (serious harm): not every kind of act that causes harm to others can be prohibited and punished by criminal law, but only the acts that cause avoidable and substantial harm → c.d. de minimis principle: the law should not criminalize trivial crimes Crimes provoking an unreasonable risk of harm to other people  The Harm Principle What about criminal protection of collective interests? (eg bribery, smuggling, counterfeiting money, tax evasion, …) public harm (harm to society, to the environment, to the economy, etc.) → collectively shared interests but isn’t it too vague? (see controversial cases: public security, public peace…) We need to balance collective interests with individual freedoms  The protection of Moral Values: the Offence Principle Immorality is not a sufficient reason for criminalization, according to Mills Joel Feinberg proposed the «offence principle» The harm principle should be integrated by an OFFENCE PRINCIPLE = behaviours causing feelings of offence may be legitimately criminalized, even though they do not cause harm to others Offence = outrage to people’s sensibility