Abstract
New scholarly paradigms in the study of criminal law come along rather rarely. Despite extensive published work on this core topic in the educational curriculum and intellectual programme of the legal academy in most countries, the basic conceptual tools which inform its exposition and analysis in mainstream scholarship have remained relatively stable over the last half century. Moreover, they have not evolved in proportion to the development of the field at large. Valuable attention to rethinking the conceptual parameters of the field has come from contextual, historical, feminist or otherwise critical scholarship (Ashworth 1991; Farmer 2016; Fletcher 1978; Loughnan 2012; Naffine 2009; Norrie 2014; Wells and Quick 2010); and—as the contributors to this fine essay note—from site-specific areas of criminalisation. But, the conceptual basis for theorisation remains a pressing concern. This is particularly so given the recognition, in much of the most innovative recent scholarship, that the field of criminal law cannot be fully understood independent of the dynamics of criminalisation conceived as a broad social practice. This development is giving a new spin to the longstanding focus in theoretically informed criminal law scholarship on the question of responsibility (Ashworth forthcoming; Ashworth and Zedner 2014; Duff et al. 2010, 2011, 2013, 2014; Farmer 2016; Horder 1992; Lacey 2016; McSherry, Norrie and Bronitt 2009; Norrie 2016; Ramsay 2012).
Highlights
New scholarly paradigms in the study of criminal law come along rather rarely
McNamara and colleagues (‘the modalities team’) are absolutely right to identify a lacuna in the theoretical apparatus in criminal law scholarship, which increasingly asserts the importance of understanding patterns of criminalisation, yet tends to duck the question of how, empirically and/or conceptually, we can track those patterns
The expanding criminalisation modality is divided into nine further sub‐modalities which encompass not merely formal offence definition change and adaptations in penalties, procedural safeguards, defences, and enforcement and pre‐ or post‐correctional powers, as well as encompassing offences within regulatory regimes and civil/criminal hybrids
Summary
New scholarly paradigms in the study of criminal law come along rather rarely. Despite extensive published work on this core topic in the educational curriculum and intellectual programme of the legal academy in most countries, the basic conceptual tools which inform its exposition and analysis in mainstream scholarship have remained relatively stable over the last half century. McNamara and colleagues (‘the modalities team’) are absolutely right to identify a lacuna in the theoretical apparatus in criminal law scholarship, which increasingly asserts the importance of understanding patterns of criminalisation, yet tends to duck the question of how, empirically and/or conceptually, we can track those patterns.
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