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Applying Ultima Ratio: A Skeptical Assessment
| Content Provider | Semantic Scholar |
|---|---|
| Author | Husak, Douglas |
| Copyright Year | 2005 |
| Abstract | We should applaud the sentiment behind Nils Jareborg's decision to examine principles designed to limit the scope of the criminal sanction. Apart from a preoccupation with whether the harm principle should be included in a theory of criminalization, Anglo-American theorists have tended to focus almost exclusively on doctrines in the general part. Although the boundaries of the general part are enormously controversial, issues of criminalization are generally located beyond them. I take Jareborg at his word when he writes that “it is often—in fact, very often—claimed that criminalization is the legislator's ultima ratio.” It is noteworthy, however, that Andrew Ashworth is the only scholar in the AngloAmerican world who is said to endorse this principle. Nearly all of the authorities cited by Jareborg are continental. Why Anglo-American theorists are less likely to defend principles to limit the reach of the criminal sanction than their European counterparts presents a fascinating question in comparative criminal theory I lack the competence to explore. Without a theory to constrain the scope of the criminal law, rampant overcriminalization (or what Jareborg calls inflation) has resulted. The criminal law has grown far beyond its core, and now includes a plethora of offenses |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | https://kb.osu.edu/bitstream/handle/1811/72873/OSJCL_V2N2_535.pdf?isAllowed=y&sequence=1 |
| Alternate Webpage(s) | http://moritzlaw.osu.edu/osjcl/Articles/Volume2_2/Symposium/Husak-PDF-3-17-05.pdf |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
