Criminalisation as Regulation: The Role of Criminal Law

Abstract

This paper explores the links between regulation scholarship and criminal law scholarship. It focuses on the norms and doctrines of criminal law in order to ask three questions. First, what contribution, if any, does criminal law make to the regulatory tasks of the criminal process as a whole and, assuming that criminal law is making some regulatory contribution, what is distinctive about criminal law’s regulatory aspect? Second, how is criminal law itself regulated by other normative systems, and might substantive or procedural changes in criminal law enhance its regulatory contribution: might, as it were, criminal law itself be more effectively regulated? Third, how, if at all, have the dynamics of regulation in late modern states affected criminal law, and what contribution does or might criminal law make to the reflexive or responsive regulation of socially undesirable behaviour? The paper first sketches out the theoretical framework which will shape its analysis, tracing the application of that framework to the various aspects of criminalisation. Second, it applies this analysis to a number of key aspects of criminal law viewed in historical perspective, so as to tease out the regulatory aspects of modern criminal law in England and Wales. Thirdly, it addresses some of the questions raised in the introduction to this collection, so as to examine the regulatory and meta-regulatory actuality and potential of criminal law in the contemporary regulatory state.