Chapter

Criminalization and Regulation

Victor Tadros

in The Boundaries of the Criminal Law

Published in print November 2010 | ISBN: 9780199600557
Published online September 2011 | e-ISBN: 9780191729171 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199600557.003.0007

Series: Criminalization

Criminalization and Regulation

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This chapter focuses on the distinction between punishment and penalties, and the significance of this distinction for a theory of criminalization. It illustrates the significant difficulties encountered by retributivist theories in providing adequate restraints on the criminal law, and argues that a better account of the distinction between punishments and penalties can be provided by an alternative, license-based theory of punishment. The license theory claims that, while punishment is imposed on people as a means to prevent further wrongdoing by others, penalties are imposed on certain types of conduct in order to restrict the circumstances in which a person can be treated as a means. Thus, punishment involves an intention that the wrongdoer will suffer harm; penalties instead ensure fairness in the distribution of resources. The chapter explores the implications of this view for the scope of the criminal law, and particularly for the distinction between criminal and civil wrongs.

Keywords: punishment; penalties; criminalization; criminal law; license theory

Chapter.  13358 words. 

Subjects: Criminal Law

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