The wrongfulness of crimes of unlawful association

Though always present in penal codes, offenses based on belonging to a criminal organization occupy a vanguard position in today's evolution of penal law systems: organized crime is located at one of the most prominent places in the criminal policy agenda. Nevertheless, neither criminal law theory nor the actual content of criminal provisions nor the putting of theory into practice enables an adequate restriction of the interpretation of the laws against criminal organizations. Therefore we need to investigate the wrongfulness at the base of this offense. European legal scholarship has proposed two basic approaches: to consider that this offense anticipates the possibility of punishing and prosecuting such behavior (anticipation theory) or to consider that it harms a collective interest ("public security," "public peace"). From our perspective, it is necessary to underline the collective wrongfulness embedded in a criminal organization and that, beyond the actual crimes committed, it questions the monopoly of violence exercised by the state. It represents the constitution of a violent organization that counters the basis of state political organization (arrogation of political organization). This approach opens a possibility to adequately define the offense of belonging to a criminal organization.

Journal/Publisher: New Criminal Law Review, Volume 11, Issue 4

Publication type: Article

Number of pages/Page range: 563-589

Language/s (content): English

Date of publication: 02-01-08

Personal data

Full name Manuel CANCIO MELIA

Current occupation Member

University/Institution Universidad Autónoma de Madrid

Address Calle Kelsen 1

Postal code 28049

Telephone 00 34 91 497 81 16/81 15

Email manuel.cancio@uam.es