The AHRC has awarded a grant for a four-year project on Criminalization. This builds on a previous AHRC project (The Trial on Trial), and aims to develop a normative theory of criminalization. The lead researchers are Antony Duff (Philosophy, Stirling), Lindsay Farmer (Law, Glasgow), Sandra Marshall (Philosophy, Stirling), Massimo Renzo (Law, York) and Victor Tadros (Law, Warwick).
It is often said that contemporary liberal democracies such as Britain and the USA face a crisis of over-criminalization: too much conduct is criminalized, too hastily, without adequate thought about the principles that should guide criminalization or the aims it should serve; the result is a disorganized, unprincipled criminal law, which subjects too many people to the threat of arrest and punishment. But normative theorists of criminal law, who have made major advances in systematic work on such issues as punishment and criminal responsibility, have made comparatively little systematic progress on this central problem of criminalization. This project will remedy that lack.
Our ultimate aim is to develop a normative theory of criminalization: an account of the principles and values that should guide legislators in deciding what should be criminalized, and the officials whose responsibility it is to enforce and administer the law; for criminalization is a matter not simply of legislation (the ‘law in the books’), but also of enforcement (the ‘law in the streets’). The central questions for legislators are: what counts as a good reason to criminalize something, and how should crimes be defined? The central questions about enforcement are: what kind of discretion should officials have in enforcing the law, and how should they exercise that discretion? Our account will aim to address both theorists and policy-makers.
To achieve that ultimate aim, we will pursue several further inquiries. We will explain the distinctive character of criminal law as a particular type of regulation: starting with the idea that the criminal law aims to identify, define and condemn wrongs which are ‘public’ in that they properly concern all citizens, we will examine the distinctions between criminal law and other kinds of legal regulation. We will discuss the way in which the content of the criminal law should be organised: what principles should guide legislators in defining crimes; how should those definitions be structured; how should offences be classified? We will discuss the relationship between criminal law and the state: if we understand the state in terms of an ideal of liberal democracy that gives citizenship a central role, what kind of criminal law is appropriate for citizens of such a state? (This will also involve examining the relationship between domestic, trans-national and international criminal law.) We will attend to the historical development of the criminal law: a normative theory of how our institutions and practices ought to be structured must be based on an understanding of their history.
A further objective of the project, building on the informal network of criminal law theorists that we began to develop through The Trial on Trial, is to promote interdisciplinary, inter-jurisdictional debate about this problem, thus improving the health and resources of criminal law theory. This will be achieved by the three linked pairs of workshops that we will hold in the first three years of the project; the major conference to be held in the fourth year; and the monthly meetings between the investigators, the research assistant and the Ph.D. students, half of which will also include invited guests.