Criminalization or criminalisation, in

criminology Criminology (from Latin , 'accusation', and Ancient Greek , ''-logia'', from λόγος ''logos'', 'word, reason') is the interdisciplinary study of crime and deviant behaviour. Criminology is a multidisciplinary field in both the behaviou ...

, is "the process by which behaviors and individuals are transformed into

crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...

and criminals". Previously legal acts may be transformed into crimes by

legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred ...

or judicial decision. However, there is usually a formal presumption in the rules of

statutory interpretation Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...

against the retrospective application of laws, and only the use of express words by the legislature may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo ''de facto'' criminalization through more effective or committed legal enforcement. The process of criminalization takes place through societal institutions including schools, the family, and the criminal justice system.

The problems

There has been some uncertainty as to the nature and extent of the contribution to be made by the victims of crime. But, as Garkawe (2001) indicates, the relationship between

victimology Victimology is the study of victimization, including the psychological effects on victims, the relationship between victims and offenders, the interactions between victims and the criminal justice system—that is, the police and courts, and co ...

and

has become problematic. The concern is that, within the

dialectic Dialectic (; ), also known as the dialectical method, refers originally to dialogue between people holding different points of view about a subject but wishing to arrive at the truth through reasoned argument. Dialectic resembles debate, but the ...

of Right Realism and

Left Realism Left realism emerged in criminology from critical criminology as a reaction against what was perceived to be the left's failure to take a practical interest in everyday crime, allowing right realism to monopolize the political agenda on law and o ...

, a focus on the victim promotes rights selectively for certain victims, and advocates the assumption that some victim rights are more important than competing rights or values in society. For example, an

Islamic Islam is an Abrahamic religions, Abrahamic monotheistic religion based on the Quran, and the teachings of Muhammad. Adherents of Islam are called Muslims, who are estimated to number Islam by country, 2 billion worldwide and are the world ...

feminist Feminism is a range of socio-political movements and ideology, ideologies that aim to define and establish the political, economic, personal, and social gender equality, equality of the sexes. Feminism holds the position that modern soci ...

might seek consistency of treatment for women as victims and, therefore, demand the decriminalization of abortion, adultery, and seduction (

Zina ''Zināʾ'' () or ''zinā'' ( or ) is an Islamic legal term referring to unlawful sexual intercourse. According to traditional jurisprudence, ''zina'' can include adultery, fornication, prostitution, sodomy, incest, and bestiality. ''Zi ...

is a

Hudud ''Hudud'' is an Arabic word meaning "borders, boundaries, limits". The word is applied in classical Islamic literature to punishments (ranging from public lashing, public stoning to death, amputation of hands, crucifixion, depending on the c ...

offense in

sharia law Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, inta ...

), and the criminalization of

domestic violence Domestic violence is violence that occurs in a domestic setting, such as in a marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes r ...

and

sexual harassment Sexual harassment is a type of harassment based on the sex or gender of a victim. It can involve offensive sexist or sexual behavior, verbal or physical actions, up to bribery, coercion, and assault. Harassment may be explicit or implicit, wit ...

. In formal academically published theory, the real ruling class of a society reaches a temporary view on whether certain acts or behavior are harmful or criminal. Historically this one theory will be modified by scientific, medical evidence, by political change, and the criminal justice system may or may not treat those matters as crimes. Conversely, when local politics determines that it is no longer a crime, they may be decriminalized. For example, Recommendation No. R (95) 12 adopted by the Committee of Ministers of the Council of Europe on the management of criminal justice, advocates that crime policies such as decriminalization, depenalisation or diversion, and mediation should be adopted wherever possible. But the law and order debate between right and left politicians is often superficial and unscientific, formulating policies based on their appeal to an uninformed electorate rather than properly conducted research.

Principles

Several principles may underpin decisions about criminalization. These include the ''

de minimis ''De minimis'' is a legal doctrine by which a court refuses to consider trifling matters. The name of the doctrine is a Latin expression meaning "pertaining to minimal things" or "with trifles", normally in the terms ("The praetor does not conce ...

'' principle, that of the minimum criminalization.Ashworth (1999). p. 67. Under this principle, the general harm principle fails to consider the possibility of other sanctions and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of

tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...

and

regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...

. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties –

incarceration Imprisonment or incarceration is the restraint of a person's liberty for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is considered " false imprisonment". Impri ...

, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights. Most crimes of direct actions (

murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

rape Rape is a type of sexual assault involving sexual intercourse, or other forms of sexual penetration, carried out against a person without consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person ...

assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...

, for example) are generally not affected by such a stance, but it does require greater justification in less clear cases. The policy of "social defense" can be seen as an opposing view. It argues that criminalization is used against "any form of activity which threatens good order or is thought reprehensible". The minimization principle may unwittingly prevent the adaptation of the law to new situations. In general, worldwide policy makers have created a myriad of smaller offences, in contradiction to the minimization principle and more in keeping with the social defence.Ashworth (1999). p. 68.

Harm

Leading criminal law philosophers, such as Dennis Baker and Joel Feinberg have argued that conduct should only be criminalized when it is fair to do so. In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. The commonly cited objective justification for invoking the criminal law is harmful to others, but it cannot deal with all situations. For example, people are not necessarily harmed by public nudity. Feinberg suggests that offence to others also provides an objective reason for invoking the criminal law, but it clearly does not as offence is determined according to conventional morality. Prostitution is another grey area, as some countries allow it in different forms, and it is hard to say whether or not it specifically harms the public in general. One argument may be that prostitution perpetuates the spread of sexually transmitted diseases, including HIV/AIDS, and therefore harms the public which partakes in the act of prostitution. However, the legalization of prostitution would change the way it is regulated, and law enforcement could find a way to prevent the spread of sexually transmitted disease, thus eliminating the health issue and the question of the morality of the profession would be weakened. People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of

poverty Poverty is a state or condition in which an individual lacks the financial resources and essentials for a basic standard of living. Poverty can have diverse Biophysical environmen ...

and

malnutrition Malnutrition occurs when an organism gets too few or too many nutrients, resulting in health problems. Specifically, it is a deficiency, excess, or imbalance of energy, protein and other nutrients which adversely affects the body's tissues a ...

, others by

violence Violence is characterized as the use of physical force by humans to cause harm to other living beings, or property, such as pain, injury, disablement, death, damage and destruction. The World Health Organization (WHO) defines violence a ...

which might stem from a major conflict such as

war War is an armed conflict between the armed forces of states, or between governmental forces and armed groups that are organized under a certain command structure and have the capacity to sustain military operations, or between such organi ...

or from the personal violence in a

robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person o ...

. The environment may be damaged by

pollution Pollution is the introduction of contaminants into the natural environment that cause harm. Pollution can take the form of any substance (solid, liquid, or gas) or energy (such as radioactivity, heat, sound, or light). Pollutants, the component ...

, there may be hazards at work. Many of these sources of injury will be ignored while the state may delegate powers of control to a number of different agencies within an international framework where supranational agencies and

human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...

organisations may offer assistance in responding to the causes of those injuries.

Moral approaches and autonomy

The extent to which behaviours considered morally wrong in a given jurisdiction should be criminalized is controversial. Lying or breaking promises are not in general criminalised, for example. Patrick Devlin believed that moral behaviour was essential in maintaining the cohesion of a state, and so lawmakers should be entitled to criminalise immoral behaviour.Ashworth (1999). p. 43. However, opponents of this approach typically suggest use of a harm principle only and that immorality is not a reason in itself since outcomes of such activity can be used to come to a conclusion alone. Devlin's argument uses the disgust of the general public as a definition of morality; however, issues involving

prejudice Prejudice can be an affect (psychology), affective feeling towards a person based on their perceived In-group and out-group, social group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classifi ...

have shown this to be flawed and opponents push for a much stricter definition if this approach is to be used. Devlin suggested a jury to give an indication of immoral behaviour. As well as prejudice, views were likely to vary widely on issues such as

homosexuality Homosexuality is romantic attraction, sexual attraction, or Human sexual activity, sexual behavior between people of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexu ...

contraception Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth control only be ...

and other matters, particularly those influenced by religion. Agreement would be hard to find. Other opposition has been from liberal groups which favour approaches which maximise individual rights.Ashworth (1999). p. 44. A moral basis for criminalization would be

paternalistic Paternalism is action that limits a person's or group's liberty or autonomy against their will and is intended to promote their own good. It has been defended in a variety of contexts as a means of protecting individuals from significant harm, s ...

, thereby contrasting with personal autonomy. The

European Convention of Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a supranational convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the ...

, in the most part supporting individual rights from government interferences, still includes a provision for interference "for the protection of health and morals" such as legally requiring

seat belt A seat belt, also known as a safety belt or spelled seatbelt, is a vehicle safety device designed to secure the driver or a passenger of a vehicle against harmful movement that may result during a collision or a sudden stop. A seat belt reduce ...

s to be worn (in some jurisdictions) are hard to justify if an individualistic approach is taken, since, if public health provision is ignored, little harm is caused to others.

Joseph Raz Joseph Raz (; ; born Joseph Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent most of his ca ...

argues that the state cannot and should not enforce morality; rather, any attempt to limit individual autonomy should be done only to limit harm. Certain moral ideals may be justifiable if they extend autonomy. If the immoral conduct of others impinges on someone else's autonomy, then that can be legislated against.Ashworth (1999). p. 45. There are some groups for whom the principle of autonomy is weakened: those under an

age of majority The age of majority is the threshold of legal adulthood as recognized or declared in law. It is the moment when a person ceases to be considered a minor (law), minor, and assumes legal control over their person, actions, and decisions, thus te ...

and those people who are impaired by, for example, a

mental disorder A mental disorder, also referred to as a mental illness, a mental health condition, or a psychiatric disability, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. A mental disorder is ...

. In general, these people are protected from activities with significant consequences, if they are not in a position to make reasoned decisions themselves. This may involve the criminalization of under-age drinking,

smoking Smoking is a practice in which a substance is combusted, and the resulting smoke is typically inhaled to be tasted and absorbed into the bloodstream of a person. Most commonly, the substance used is the dried leaves of the tobacco plant, whi ...

gambling Gambling (also known as betting or gaming) is the wagering of something of Value (economics), value ("the stakes") on a Event (probability theory), random event with the intent of winning something else of value, where instances of strategy (ga ...

and sexual activities. Such criminalization is rarely challenged. In British law, a distinction between public and private acts was made in the Wolfenden report, which examined sexual activities (particularly homosexuality and

prostitution Prostitution is a type of sex work that involves engaging in sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, no ...

). Some acts would effectively become legal within private settings, but illegal in public settings.Ashworth (1999). p. 46. The justification for this was the concept of shock or offensive to the public. Such a line was favoured by

Joel Feinberg Joel Feinberg (October 19, 1926 – March 29, 2004) was an American political and legal philosopher. He is known for his work in the fields of ethics, action theory, philosophy of law, and political philosophy as well as individual rights and t ...

, who argued that it was a good reason in support of legislation if it effectively prevented "serious offence" to persons other than the

actor An actor (masculine/gender-neutral), or actress (feminine), is a person who portrays a character in a production. The actor performs "in the flesh" in the traditional medium of the theatre or in modern media such as film, radio, and television. ...

. Philosophers such as Feinberg struggle to quantify the ideology behind the illegality of acts which in another setting would be acceptable (that acts themselves not causing harm, for example), for example

nudity Nudity is the state of being in which a human is without clothing. While estimates vary, for the first 90,000 years of pre-history, anatomically modern humans were naked, having lost their body hair, living in hospitable climates, and not ...

. Since such acts publicly are made illegal on the basis of shock, then whether to criminalise depends on a shifting body of public opinion, which varies from place to place and from time to time. The concept of "insult" rather than "offensive" may be more specific.

Omission

Common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

does not often find an actor liable for omission – failing to do something required by the law. Where this has applied it has typically been in industrial

, in matters of

social security Welfare spending is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specifically to social insurance ...

or some personal regulated activity such as driving (for example, in the case of a

hit and run In traffic laws, a hit and run or a hit-and-run is the criminal act of causing a traffic collision and not stopping afterwards. It is considered a supplemental crime in most jurisdictions. Additional obligation In many jurisdictions, there ma ...

). These form conditions placed upon operating in a particular manner and are thus understood in that context. There are few general duties in common law jurisdictions, although these do include the responsibility of a parent to safeguard their children, to a landowner to prevent offences being carried out there, and to someone creating a dangerous situation to attempt to limit that danger.Ashworth (1999). p. 48. Proponents of limited liability for omissions suggest that the wording for such a law would be vague, possibly involving "reasonable" care or action, and so would be hard to enforce. This would give prosecutors wide discretion, which may be opposed to justice. Morally, omission is viewed by many as a far lesser problem than act; compared to murder, allowing someone to die is seen as much smaller. A requirement to spend one's time and energy helping others would seem to contradict the autonomy many other laws aim to provide the individual with.Ashworth (1999). p. 49. Opponents point out these arguments fail to consider the harm that such omissions may cause, in contradiction to the harm principle many legal systems start out with. Life and physical integrity are often the highest priorities of a legal system. Difficulties in definition are in common with many other areas, theorists such as Feinburg point out. A non-burdensome rescue is likely to be less valuable than freedom of action. Limited liability is considered as article 223 of the

French Penal Code The French criminal code () is the Codification (law), codification of French criminal law (). It took effect March 1, 1994 and replaced the French Penal Code of 1810, which had until then been in effect. This in turn has become known as the "old ...

, which criminalises: "(1) a person who voluntarily neglects to prevent a serious crime of offense against that person, if that crime could be prevented without personal risk or risk to others; and (2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others." This is common with several other European jurisdictions. Whilst open to the criticisms of vagueness and prosecutor discretion, it has not been seen as overly oppressive.Ashworth (1999). p. 50.

Procedure

When a state debates whether to respond to a source of injury by criminalising the behaviour that produces it, there are no pre-set criteria to apply in formulating social policy. There is no ontological reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of

corporate manslaughter Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong. It enables a corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation ...

, are either ignored or dealt with as civil matters. The criminalization process defines and classifies behaviour. It broadcasts the laws so that no-one may have the

excuse In American jurisprudence, an excuse is a defense to criminal charges that is a distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, ...

ignorance Ignorance is a lack of knowledge or understanding. Deliberate ignorance is a culturally-induced phenomenon, the study of which is called agnotology. The word "ignorant" is an adjective that describes a person in the state of being unaware, or ...

, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components: #Creation of a social order. This is both a socio-economic process, a "...fundamental ordering of social relations so that those things necessary for social survival can be produced and distributed in some predictable fashion" and an ideological process so that there can be a "...development of values, beliefs, and ideas related to the concrete tasks of production and distribution."(p. 6). Thus, society must develop the apparatus of law creation, law enforcement and

punishment Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon an individual or group, meted out by an authority—in contexts ranging from child discipline to criminal law—as a deterrent to a particular action or beh ...

and the system must be acceptable to the majority of those who live in the community. If the laws do not match the general

mores Mores (, sometimes ; , plural form of singular , meaning "manner, custom, usage, or habit") are social norms that are widely observed within a particular society or culture. Mores determine what is considered morally acceptable or unacceptable ...

, their enforcement will be a source of friction and disharmony. Conformity to the social order must, for the most part, be self-enforced. #For the times when self-enforcement fails, society must create a legal order. This part of the process sees the centralisation of power within the institutions of the political state. Some states justified the criminalization process as demonstrating their concerns about safety and security, the policy of control, policing, criminal justice, and penal practice. The modern state is decentralising and privatising its functions. This is changing the character and content of the remaining institutions of the state which must now work co-operatively with other for-profit agencies. #The political order must realign so that the remaining political entities such as

legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...

s and

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

s set agreed targets for state control and then produce actual outputs of the legal order, i.e. of people defined as criminal and processed through that system.

Ontological basis of crime

Put in the most simple terms, ontology deals with or establishes the clear grounds for being. (Heidegger, Martin, Being and Time, introduction, referencing Plato's Parmenides.) In some of the traditional schools, such as those of the post-1688 English or Americans (many of the writings of the American Founding Fathers, but especially The Federalist) and their Dutch predecessors (see Kossmann, E. H. Political Thought in the Dutch Republic, 2004) ontology proper is deemed beyond the scope of legal thought, in accord with the modern distinction between society and state (which some consider based in the distinction the Romans made between themselves and their Italian allies, the socii, but not given the theoretical articulation we recognize today until emphasized by Thomas Hobbes' Leviathan. See

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

.) However, some classical theorists, such as Aristotle, in his Politics and Metaphysics, and to a lesser degree in his Topics, suggest that the distinction is at least problematic. One need consider no further than the claim that man is a political animal to see this is so. As a political animal, man has come to see himself as possessed of rights, whether these are the

Rights of Englishmen The "rights of Englishmen" are the traditional rights of English subjects and later English-speaking subjects of the The Crown, British Crown. In the 18th century, some of the Patriot (American Revolution), colonists who objected to British ...

of old, or the universal human rights advocated vigorously toward establishment today through the matrix of commercialism.International Covenant on Economic, Social and Cultural Rights, http://www.unhchr.ch/html/menu3/b/a_cescr.htm. At least in the today dominant American model, deprivation of right amounts to injury (consider especially Justice Stevens dissenting opinion in Castle Rock v. Gonzales), and injury—so goes the prevailing theory—amounts, when coupled with requisite intent, in most cases, to crime, when it does not admit of civil redress. Thus, again in simple terms, and to the extent that human beings are indeed political beings, crime does seem to have an ontological basis. (For one approach to the question of criminal ontology, see "Understanding Crime and Social Control in Market Economies: Looking Back and Moving Forward" by Robert Bohm in Jeffrey Ian Ross, ed. Cutting the Edge: Current Perspectives in Radical/Critical Criminology and Criminal Justice. Westport, Conn: Praeger, 1998.) This, further, seems to hold if ontology itself is divided into political and trans- or supra- or meta- political ontology—i.e., what once was the realm of Christian theology. It does not matter whether that theology is Christian or belonging to some other apolitical belief. The point is that one may, with some justice, argue persuasively that being is divided. This need not, however, force the question of meta-political crimes. Our purposes here, in this article, are limited to the political. For the question in general see

Ontology Ontology is the philosophical study of existence, being. It is traditionally understood as the subdiscipline of metaphysics focused on the most general features of reality. As one of the most fundamental concepts, being encompasses all of realit ...

. Baker argues that only objective harms and other objective bad consequences (or actions in the case of inchoate and endangerment offenses) are prima facie criminalizable. By other bad consequences Baker means privacy violations and conduct that does not necessarily result in tangible harm, but does result in unwanted consequences. Baker argues that the privacy violations that result from being forced to receive unwanted obscene information in public places (exhibitionism) would amount to a sufficient bad consequence for the purposes of invoking the criminal law, but argues that proportionate punishment means that such conduct should only be punished with fines rather than jail terms.