by Sakari Melander (Finnish)
A Theory of Criminalization – Legal Constraints to Criminal Legislation
This thesis explores fundamental questions that criminal justice systems are facing, that is to say problems relating to criminalization. The question of whether behaviour should be criminalized has widely been underanalyzed. Academic study has instead focused on justifications for punishment, on procedural safeguards, and on the general part of the criminal law. However, questions regarding criminalization itself have been revived in modern literature on criminal law. Criminalization could be considered to be the most fundamental issue in a criminal justice system because at its roots criminalization is the basis for applying theories of punishment and the general doctrines of criminal law. Criminalization itself therefore deserves detailed investigation. One basic problem concerning criminalization is that we have no clearly articulated theory on criminalization. This thesis examines whether it is possible to construct a theory of criminalization that is built on the model of moral theory. The construction of the theory is the basis of the thesis, and its justifications will be based on those theoretical and practical views concerning criminalization that have been presented in Finland from the 1970 s. This period coincides with the total reform and modernization of the Finnish penal code. The main function of this theory of criminalization is to uncover the justificatory prerequisites to criminal legislation. Although criminalization is ultimately a political decision there are several legal constraints that limit the powers of the legislator. The theory concentrates mainly on those positive legal constraints that bind the legislator. The pragmatic side applied part of the theory, different principles of criminalization, concentrates on these constraints that are developed in line with the prevailing views on criminal justice policy. The theory is influenced by prevailing Finnish criminal justice policy and is capable of practical application. It is not intended as a purely normative theory disconnected from actual practice.
Journal/Publisher: Suomalainen Lakimiesyhdistys
Publication type: Book
Number of pages/Page range: 517
Language/s (content): Finnish
Date of publication: 05-09-08
Personal data
Full name Sakari Melander
Current occupation Assistant Professor (Tenure Track) of Criminal Law
University/Institution University of Helsinky