Theorising Criminalisation: The Value of a Modalities Approach

Abstract

Abstract'Criminalisation' has attracted considerable scholarly attention in recent years, much of it concerned with identifying the normative limits of criminal law-making. Starting from the position that effective theorisation of the legitimate uses of criminalisation as a public policy tool requires a robust empirical foundation, this article introduces a novel conceptual and methodological approach, focused on recognising a variety of modalities of criminalisation. The first part of this article introduces and explains the modalities approach we have developed. The second part seeks to demonstrate the utility of a modalities approach by presenting and discussing the findings of a pilot study of more than 100 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland and Victoria) between 2012 and 2016. We conclude that a modalities approach can support nuanced examination of the multiple ways in which adjustments to the parameters of criminalisation are effected. We draw attention to the complexity of the phenomenon of criminalisation, and highlight the need for further quantitative and qualitative work that includes longer-term historical analysis. KeywordsCriminalisation; modalities; law reform; statutes; criminal law theory. Please cite this article as:

Understanding processes of criminalisation: Insights from an Australian study of criminal law-making

“…In a recent pilot study of the concept of modalities of criminalisation (McNamara et al, 2018), we collected all criminal law statutes related to 10 selected criminalisation sites enacted by the legislatures of NSW, Queensland and Victoria during the period 2012–2016: (1) homicide, (2) sexual assault, (3) domestic violence, (4) alcohol-related violence and public order, (5) drugs, (6) consorting and association, (7) fraud and financial crime, (8) driving offences, (9) bail and (10) parole. We define ‘criminal law statute’ broadly to cover legislation governing offences and penalties, police powers (and the powers of other state criminal justice agencies) and criminal procedure.…”

“…This article argues that criminalisation scholarship benefits from such an analysis and introduces a new conceptual framework for so doing. It forms part of a large-scale empirical study of Australian experiences with criminalisation and criminal law-making (McNamara, 2015; McNamara et al, 2018). We emphasise experiences (plural) not only to recognise variations over time, and subject matter, but also because under Australia’s federal constitutional structure, the legislature in each of Australia’s six states and two territories has general criminal law-making responsibility, and the Commonwealth Parliament can also enact criminal laws pursuant to its enumerated powers under s 51 of the Australian Constitution.…”

“…In earlier work, we have developed and piloted a concept of modalities of criminalisation to capture and analyse not only instances of offence creation and provision for harsher punishment (i.e. the obvious target of assertions about over-criminalisation and the extension of criminal laws beyond normative limits), but also the multiple other ways in which legislation can influence the reach of criminal justice institutions and the intensity of surveillance, policing and penal practices (McNamara et al, 2018).…”

Do we need the criminalization of medical fake news?

“…He has argued that the state has not only an obligation to protect citizens against such violations but also the duty to criminalize them (Harel 2015 ). He has argued that “criminalization is a form of public acknowledgement of the wrongfulness of violations of the right to life and liberty.” (Harel 2015 , p. 21) There are many objections to the criminalization of certain behaviors as a tool for resolving social problems (McNamara et al 2018 ), but sometimes it is a necessary instrument.…”

La seguridad y el estado democrático liberal. Criminalizando la política de los jóvenes

“…in social movements (Altbach 2001;Della Porta 2009;Della Porta 2017;Grasso 2016;Bessant 2016a;Bessant 2016b). This article also engages with criminalization studies (Ashworth 2009;Ashworth and Zedner 2008;Husack 2008;Lacey 2004;Zedner 2009;Brown et al, 2011;McNamara et al 2018). As Michalowski notes, this field attempts to account for 'the process by which behaviors and individuals are transformed into crime and criminals ' (1985:6).…”