Theories of Criminalization and the Limits of Criminal Law: A Legal Cultural Approach

Abstract

In criminal law theorizing, a theory of criminalization has played only a marginal role compared to many other issues, such as the theory of punishment. Why is this the case? Do we need a specific theory of criminalization and if so, for what purpose? And on what premises should such a theory stand? This chapter argues that if we understand the theory of criminalization in a broad sense, more progress has already been made than might be thought. Continental criminal law theorizing has significant resources for thinking about what and how to criminalize. Criminal law theorizing, for two centuries now, has been informed by philosophical points of view, but equally important have been the practice of codification, the practice of law reform, and constitutional debates concerning the proper scope of the criminal law. The distinction between genuine criminal law and police law as well as administrative law has received significant attention. All of this has left its traces in our understanding of the principles guiding criminalization.