Criminalisation and Normative Theory

Abstract

Criminal law scholarship is enjoying a renaissance in normative theory, evident in a growing list of publications from leading scholars that attempt to elucidate a set of principles on which criminalisation and criminal law might — indeed should — be based. This development has been less marked in Australia, where a stream of criminologically influenced criminal law scholarship, teaching and practice has emerged over nearly three decades. There are certain tensions between this predominantly contextual, process-oriented and criminological tradition that has emerged in Australia, characterised by a critical approach to the search for ‘general principles’ of the criminal law, and the more recent revival of interest in developing a set of principles on which a ‘normative theory of criminal law’ might be founded. Aspects of this tension will be detailed through examination of recent examples of criminalisation in New South Wales that are broadly representative of trends across all Australian jurisdictions. The article will then reflect on the links between these particular features of criminalisation and attempts to develop a ‘normative theory’ of criminalisation.