Decriminalization, How Can It Be Legitimized and How Far Should It Go?

Abstract

This is about the changing scope of criminal law, the changing borders between criminal law, administrative law and civil liability and the abolition of some crimes for philosophical as well as for practical reasons. Safety and security in any society depend on a balanced assignment of tasks for criminal, regulatory and civil sanctions. This balance might change over time with cultural, technical and economic developments. The incomplete theories of criminal punishment can only provide very limited guidance. Retribution theory remains silent on the scope of criminal punishment, specific deterrence cannot explain some of the basic and undisputed facts of criminal law and general deterrence cannot explain why criminal punishment is not harsher than what we observe. Should we in the light of economic reasoning expect or demand a withering away of criminal sanctions and their replacement by administrative sanctions and civil liability when a country becomes rich? It is shown that this is not without pitfalls and widely rejected in European countries, especially in Germany, unlike in the USA. Replacing prison sentences with criminal fines might be more advisable. It is also shown, that the punishment of victimless crimes lacks convincing legitimacy and may for economic reasons remain less effective in terms of deterrence than for all other crimes. Both reasons call for decriminalization of victimless crimes. These are the topics for my lecture.