Theorising Criminalisation: The Value of a Modalities Approach
‘Criminalisation’ has attracted considerable scholarly attention in recent years, much of it concerned with identifying the normative limits of criminal law-making. Starting from the position that effective theorisation of the legitimate uses of criminalisation as a public policy tool requires a robust empirical foundation, this article introduces a novel conceptual and methodological approach, focused on recognising a variety of modalities of criminalisation. The first part of this article introduces and explains the modalities approach we have developed. The second part seeks to demonstrate the utility of a modalities approach by presenting and discussing the findings of a pilot study of more than 100 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland and Victoria) between 2012 and 2016. We conclude that a modalities approach can support nuanced examination of the multiple ways in which adjustments to the parameters of criminalisation are effected. We draw attention to the complexity of the phenomenon of criminalisation, and highlight the need for further quantitative and qualitative work that includes longer-term historical analysis.
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