The evolution of European Union criminal law (1957-2012)

creation of summary offences tried in magistrate courts—a product of the expanding
functions of the modern administrative state for which criminal law became an
increasingly important tool. 44 Similarly, in European continental systems, the same
increase in the scope of criminal law was felt. This led to the emergence and
development of the so-called ‘administrative penal offences’, which are tantamount to
‘regulatory offences’—wrongdoings deemed to violate social or administrative norms of
organisation but not the core fundamental moral values of a society. 45
This expansion of criminal law also brought about a shift in its substantive scope. As
Lacey and Zedner observe, the search for rationales in criminal law across criminal
justice systems has become less straightforward in recent years. For example, the
authors note that,
“In a system in which criminal law is regarded as a regulatory tool of government and
in which (in England and Wales) there are very weak constitutional constraints on what
kinds of conduct can be criminally proscribed – everything from homicide and serious
fraud through dumping litter to licensing infractions and ‘raves’ can be criminalized –it
seems impossible to distinguish criminal law by reference to its substance.”
The authors go on to explain that this is a contingent matter and that, historically, things
have not always followed this trend. Hence, in legal commentaries of the eighteen and
nineteen centuries, a richer and more confident assertion of a rationale for criminal law
could be found and the interests and values that criminal law set out to protect and
express were clearer. These rationales would vary from the protection of god, religion,
and the state, to the protection of the individual or property. 46
Hence, as Lacey, Wells and Quick note, this tendency to resort to formal approaches
when defining criminal law draws from
“a prevailing tension in contemporary criminal law: that between older ideas of crime
as public wrongdoing and the modern reality of criminal law as a predominantly
administrative system managing enormous numbers of relatively non serious and
‘regulatory offences’: between the older, quasi moral and retributive view of criminal
44 The author argues that this expansion was effected primarily by the creation of summary
offences tried in magistrates courts which were a product of the expanding functions of the
modern administrative state for which criminal law became an increasingly important tool, L.
Farmer, “The obsession with Definition” (1996) Social and Legal Studies 64-66.
45 J. Figueiredo Dias, Direito Penal, supra note 31, 153-160.
46 The authors also note that the existence of stronger rationales is expected in very circumscribed
systems of criminal law but less so in the type of systems we have nowadays, in relation to which
the scope and functions of criminal law have increased immensely, N. Lacey and L. Zedner,
“Legal Constructions of Crime”, supra note 32, 164.
21