A comparison between continental european and Anglo-American approaches to overcrimnialization and some remarks on how to deal with it

Abstract

The article begins by briefly identifying what the overcriminalization problem means and how this problem is presented differently in contintenal European and Anglo-American law. Next is an attempt to summarize the causes of overcriminalization, distinguishing those causes that can be attributed to our own activity as specialists in criminal law from other unrelated causes. Some general proposals follow about what is within our grasp to do about overcriminalization and what goes beyond our competence. The first part thus provides the outlines of a general theory of overcriminalization. The second part offers a provisional three-step test to determine when it is justified to anticipate the intervention of the criminal law by making use of risk-creation offenses, such as, but not limited to, inchoate offenses, possession offenses, and offenses of belonging to criminal organizations. © 2011 by the Regents of the University of California. All rights reserved.