Historicising Criminalisation: Conceptual and Empirical Issues

Abstract

This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about ‘overcriminalisation’ which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in ‘criminalisation scholarship’, and suggests there is a failure adequately to distinguish the different senses of ‘criminalisation’ in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy.