Criminalization and the Role of Theory

A. P. Simester and A. T. H. Smith

in Harm and Culpability

Published in print August 1996 | ISBN: 9780198260578
Published online March 2012 | e-ISBN: 9780191682124 | DOI:

Series: Oxford Monographs on Criminal Law and Justice

Criminalization and the Role of Theory

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Criminal law scholarship tends too often to be conducted exclusively as either traditional blackletter law, as high moral philosophy, or as an exercise in socio-legal or law-in-context theorising. Yet it is a mistake to think that arguments about the criminal law can be propounded exclusively within any one of these domains, for even the most specific problems can generate especially difficult theoretical questions. This book shows that one should not formulate criminal laws without reference to the underlying principles of criminalisation. Not only punishment but also proscription and censure must be justified. Whether a contribution discusses the law's conceptions of culpability and harm as doctrines, or in application to more particular areas of legal rules, theory is at work at every stage. The chapters in this collection, then, illustrate some of the ways in which rival accounts of culpability and wrongdoing, over which academics do battle (both in this volume and elsewhere) from their ivory towers, can have real, practical implications for the criminal law.

Keywords: criminal law; criminalisation; moral philosophy; punishment; proscription; censure; culpability; harm; wrongdoing

Chapter.  8749 words. 

Subjects: Criminal Law

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