Normative Theories of Criminalisation

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 104-114.

From 'Overreach' to 'Overcriminalisation'

[1] Developing a normative theory of criminalisation involves specifying the legal conditions that should apply before a particular form of behaviour is criminalised.

  • It thus seeks to prevent further 'overreach' and 'overcriminalisation'.
  • Overcriminalisation has arguably occurred in most Western countries (especially the US).

Ashworth proposes a core for criminal law which would reduce overcriminalisation or overreach:[2]

  • At the moment, society has strict and absolute liability offences which have no requirement of intention.
  • A better proposed core for the criminal law would be:
    1. Criminal law is used only to censure persons for substantial wrongdoing
      • Anti-social behaviour etc would be more appropriately dealt with using preventive measures such as education.
    2. Enforcement should involve equal treatment and proportionality.
      • Reorganising the traditional divisions of crime.
    3. All accused persons should be afforded protections as required by international conventions of human rights.
    4. Sentences (both maximum and actual sentences given out) should be proportionate to the seriousness of the crime.

Criminal Responsibility and Citizenship

[3] According to Anthony Duff’s 'relational' theory of criminal responsibility, a citizen who committed a crime is called to account for it by the criminal law, and during that process (until conviction) he remains, and must be treated as, a respected and normal citizen.

Duff discusses the implications of the theory and what happens if it is ignored:[4]

  • If a defendant belongs to a group that has been systematically disrespected and not afforded the concern due to them as citizens, then there should be a defence or perhaps a barrier to conviction available to such people.
  • In the meantime, restorative justice should be emphasised.
  • Restorative justice: legal processes that seek to repair the harm done, by bringing together the victim and perpetrator (as well as the broader community) to make amends.

Internal and External Constraints on Criminalisation

[5] There is too much criminal law and too much punishment, with these phenomena being closely related.

  • Both external and internal constraints should be placed. The external constraints come from some normative theory regarding the criminal law, while internal constraints are derived from the law itself.
  • External constraints: (1) penal liability can only be imposed for non-trivial harms, (2) only when the conduct is harmful, and (3) punishment is justified only to the extent it is deserved.
  • Internal constraints: (1) criminal legislation must serve some substantial state interest, (2) the law must directly advance that interest, (3) the law should not go any further than achieving that purpose.
  • It is suggested that the general claims by politicians regarding the relation of criminalisation to deterrence should not be accepted on face value.
    • The claim is that deterrence doesn't work because crimes are committed in the heat of the moment, when anger and such make rational thought impossible.

Rape: A Challenge to the 'Core' crime theory

[6] Normative theories often make a distinction between ‘core’ crimes and more contentious and 'mala prohibita' offences (regulatory offences, which are criminal only because they are prohibited). However, it should be noted that the commonsense view that everyone knows a non-trivial crime when they see one is inadequate, even in terms of so-called 'core crimes'.

Naffine challenges the status of rape as a core crime or widely agreed-upon crime, given low reporting and high attrition (dropping out from a case) rates. This poses a problem to the normative concept that only non-trivial offences should be criminalised, with even core crimes having obscure and contentious aspects.[7]

Drink Spiking and Rock Throwing: a NSW Case Study

[8] The creation of new criminal offences has been a prominent aspect of legislative activity, suggesting a cavalier attitude to the criminal law as a means of control.

  • There are a couple of new features to the creation of criminal law offences today: These include:
    • Speed - criminal offences are created sometimes with great speed (eg, laws against 'bikies' and organised crimes were passed within a week.
    • Extensive powers - the new offences are often accompanied with increased police powers.
    • Changes to evidence and procedure laws - again, the new offences are accompanied by procedural changes which can sometimes be unfair.
    • 'Creation of 'preparatory offences' - creating offences for merely 'preparing' or participating in the preparation to do a crime rather than actually doing it.
    • Increased 'Particularism' - created offences for particular things which are actually covered by more general offences.
      • For example, rock throwing - created despite the presence of a range of penalties available under other offences such as assault.
        • Criminal offences need to be stated/drafted in general terms, it is ridiculous to be so specific.
        • Theoretically, it should just be that if you throw a rock and cause serious injury, it is grievous bodily harm, and if you kill, it is murder.
      • However, it does provide a fuller extent of charge options to the police.
      • This particularism reduces the coherency of the criminal law.
  • With continuing developments to the criminal law, the communicative aspect of the law is compromised, offending rule of law principles and increasing the likelihood that offenders are not aware of a particular wrongdoing until after the commit the act.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 104.
  2. A Ashworth, 'Is the Criminal Law a Lost Cause?' (2000) 116 LQR 225 in Textbook, pp. 104-6.
  3. Textbook, p. 106.
  4. Anthony Duff, Answering for Crime, (2007) in Textbook, pp. 106-7
  5. Douglas Huzak, Overcriminalization (2008) in Textbook, pp. 107-9.
  6. Textbook, p. 109.
  7. Ngaire Naffine, 'Moral Uncertainties of Rape and Murder' in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds) Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (2009) in Textbook, pp. 110-1.
  8. Arlie Loughnan, 'Drink Spiking and Rock Throwing: The Creation and Construction of Criminal Offences in the Current Era' (2010) 35(1) Alt LJ 18 in Textbook, pp. 111-4.
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