How Crimes Should Be Created: A Practical Theory of Criminalization

Criminal Law Bulletin, Vol. 49, No. 1, 2013

53 Pages Posted: 4 Dec 2015

Date Written: 2013

Abstract

Criminalization is one of the most significant issues in criminal law. Actus reus, mens rea, defenses; these issues receive massive academic attention, as well they should, for they are all important and necessary constructs to making criminal law both just and logical. However, criminalization necessarily precedes any of these constructs. We must criminalize before analyzing how offenses are constructed. Prior to phrasing the precise actus reus we must choose what sort of conduct we wish to prevent. Before realizing when defenses are in order, we must decide what offenses we are to establish.

Criminalization is critical. What does it matter if criminal law constructs such as the actus reus are well drafted in specific offenses, if those same offenses should not have been created at all? What does it matter if mens rea is well understood in general if criminalization is overwhelmingly vague? For criminal law to be just, criminalization must be just. Criminalization charts human freedom, determining what people are not allowed to do. It affects justice, equality, legitimacy and monetary resources.

Criminalization is extremely important. It is therefore surprising that it receives such little if not scarce scholarly attention. Can legislators criminalize any sort of conduct, without limitations? Most criminal law scholars provide no clear answer to this question. Too few have addressed the matter theoretically, analyzing its most abstract layer, thus enriching the philosophical discourse. Rather, they have settled for very general guidelines which leave so many questions unanswered that they effectively provide no real help in the practical realm. On the other hand, analysis of concrete questions (conducts) of criminalization is more common, but this only contributes to narrow practical issues. The philosophy of criminalization is rare; concrete discussions have no method. There is an enormous gap between the philosophical and the concrete.

In order to bridge that gap, an analytical examination of criminalization is required, a metaphorical ladder of criminalization that conceptualizes, formulates and distinguishes general considerations of criminalization and offers the method and coherency usually absent from concrete discussions of criminalization. Such a ladder will allow the analysis of any type of conduct and minimize the need for creative non-systematical efforts characterizing concrete criminalization discussions. It will also illuminate the proximity/ between various offenses and rationales and promote transparency.

This article begins with a review of the criminalization discourse, briefly addressing the current leading principle of criminalization, the harm principle, and summarizing analytical literature on criminalization. Part 2, the heart of the article, presents the criminalization ladder, a construct which conceptualizes and formulates various general considerations regarding the criminalization of any conduct: a step-by-step normative criminalization. Part 3 presents the various benefits that the criminalization ladder can provide for future analysis. Part 4 briefly illustrates how the ladder works, using online gambling as an example. Conclusions are then presented in the final section.

Keywords: criminalization, crimes, normative, theory

Suggested Citation

Harduf, Asaf, How Crimes Should Be Created: A Practical Theory of Criminalization (2013). Criminal Law Bulletin, Vol. 49, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2698325

Asaf Harduf (Contact Author)

Zefat Academic College ( email )

11 Jerusalem St.
Zefat, 1320611
Israel

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