What is criminal law suitable for? Expediency considerations versus ultima ratio

Abstract

In the 21st century, the world will face new types of threats, which are often treated by states with criminalisation as a primary tool, as criminal law provides the opportunity for the most intrusive public intervention. However, in our view, the prevention theory of criminal law based on traditional retaliation and deterrence is less appropriate to protection of society against certain modern dangers, like terrorism or organised crime. According to our assumption, the protection and maintenance of public order and public security as a state task, which can be ensured only, if the state does not intend to achieve the goals of general prevention by exemplary punishment of perpetrators of crimes committed, only if it is able to prevent future dangerous acts. The state needs tools and legal authorization to guarantee the security of its citizens. In our study, after reviewing the nature and development of criminal policy, we present a criminal policy guideline that is of paramount importance in our view: the requirement of criminal law as ultima ratio. Our main aim is to draw attention to the potential of non-criminal means of social management, the application of which can be more effective than criminal law for ensuring the protection of society against certain phenomena, which cannot be dealt effectively with criminal law.

Arrived: 15 August 2020
Accepted: 8 October 2020