Criminalization is the process of defining an act to be a crime. An act becomes a crime when it causes harm to 'others' or the society or both, but all harm causing acts are not crime, only such acts which cause harm above a certain benchmark are crime. In this post, I will be analyzing the process of criminalization of an act, on the basis of Bentham's analysis based on the concept of pain and gain(basically another name for the cost-benefit analysis!!).
The process of criminalization takes place in two steps, both consisting of the pain-gain analysis. The first step is as follows, suppose an act A is under contention for being criminalized by the requisite authority. The authority should analyze whether the the pain caused by the act to the society or to the individual (against whom the act was done), as the case may be, is greater than the gain or the pleasure that the actor gets when he commits that act and only if the pain is greater than the gain, then such an act may be criminalized.
The second step is that, after the first step has shown that the act can be criminalized, then the authority should do an analysis of whether, the gain to the society from the criminalization of this act is greater than the pain from criminalizing this act, and only if it is proved to be so, then such an act may be criminalized.
The process of criminalization is followed, by the process of fixing the quantum of punishment for the crime. This again can be done by a pain-gain analysis. The basic funda here is, that the punishment should be such that the pain from the punishment should be greater than the gain for the actor from such an act, as only then will it have a detrimental effect on the crime scene, and as one of the aims of criminal law is reduction of crime in the society, such an analysis is necessary.
The process of criminalization takes place in two steps, both consisting of the pain-gain analysis. The first step is as follows, suppose an act A is under contention for being criminalized by the requisite authority. The authority should analyze whether the the pain caused by the act to the society or to the individual (against whom the act was done), as the case may be, is greater than the gain or the pleasure that the actor gets when he commits that act and only if the pain is greater than the gain, then such an act may be criminalized.
The second step is that, after the first step has shown that the act can be criminalized, then the authority should do an analysis of whether, the gain to the society from the criminalization of this act is greater than the pain from criminalizing this act, and only if it is proved to be so, then such an act may be criminalized.
The process of criminalization is followed, by the process of fixing the quantum of punishment for the crime. This again can be done by a pain-gain analysis. The basic funda here is, that the punishment should be such that the pain from the punishment should be greater than the gain for the actor from such an act, as only then will it have a detrimental effect on the crime scene, and as one of the aims of criminal law is reduction of crime in the society, such an analysis is necessary.
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