Effectiveness in EU Criminal Law and its Effects on the General Part of Criminal Law
| Published date | 01 September 2014 |
| Author | Sakari Melander |
| DOI | 10.1177/203228441400500303 |
| Date | 01 September 2014 |
| Subject Matter | Article |
274 Intersentia
EFFECTIVENESS IN EU CRIMINAL LAW AND
ITS EFFECTS ON THE GENERAL PART OF
CRIMINAL LAW
S M*
ABSTRACT
EU criminal law has traditionally focused on more e ective criminal law cooperation
and approximation of substantive criminal law. e general doctrines of criminal law
have pretty much remained intact, when it comes to approximation of substantive
criminal law. Principle of e ective ness i n EU law, howeve r, has a cruci al pos ition a lso in
EU crimina l law. is has meant that th e scope of EU criminal law has been expanding
and the scope is today also reaching general doc trines. While it can be seen that general
doctrines constitute the identity of a branch of law, this development may entail the
em br yo of t he ne w k in d of EU cr im in al l aw th at is mor e s up ran at io na l. is development
is analysed in the article with cr itical insights.
Keywords: approximation of substa ntive criminal law; cri minal justice policy; genera l
doctrines of cri minal law; principle of e ectiveness
1. INTRODUCTION
Speaking of e ectiveness in relation to criminal law inevitably forces us to examine
the aims of criminal law. Discussion of the aims of the criminal law has, in turn,
continued for centuries. e question of the aim(s) of the crimina l law is related to its
function. Criminal law as an area of law justi es its position through its capacity to
produce something that we appreciate as good. is may sound peculiar, since
crimina l law is perhaps most evidently de ned by its capacity to deliver punish ments,
which at bottom are more connected to evi l or harm than good. However, society has
no need for inst itutions that produce no bene t in ter ms of societal development and
* LL.D., Assist ant Professor (tenure track) of Cr iminal Law, University of He lsinki.
E ectivenes s in EU Criminal L aw and its E ects on t he General Part of Cri minal Law
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 3, 2014 275
the quality of life. Similar to other social institutions, we also grant criminal law its
position within society because of its presumably good or positive qualities.1 When
the legitimate function of a social institution, such as criminal law, is examined, two
di erent factors must be disting uished. First the social i nstitution needs to be capable
of producing consequences. ere is generally no point in maintaining social
institutions as such, without any possibility of their having consequences. Secondly,
these consequences need to have good or positive attributes. Again, there is no point
in maintaining social institutions that only produce negative consequences.2
e good qualities of the criminal justice system are traditionally elaborated in
punishment theories. Di erent punishment theories have to various deg rees endorsed
the role of e ectiveness. Most evidently, e ectiveness is positioned in deterrence
theories, which stress the consequences of criminal punishment. Hence, deterrence
theories have quite commonly been portrayed as consequentialist theories.3
Consequentialist theories are o en connected to instrumentalism; the pure form of
consequentialism holds that the justi cation for a practice depends solely on its
consequences.4 Legal instrumentalism, an approach within which law is only
conceived as a mea ns to an end, may, however, have detri mental e ects for the rule of
law and possibly threaten the fundamental principles traditionally safeguarded.5 As
this article demonstrates, e ectiveness seems to be the ultimate objective in EU
criminal law. is vi ew is e asi ly li nke d to in str umen tal ism a nd, of cour se, i s thu s ope n
to criticism. Criminal law, in particular, is an area of law where instrumentalism is
usually seen to have negative connotat ions. If criminal law were legitim ised only with
reference to the e ect ive attainment of its objective(s), the morally laden character of
crimina l law would be easily ignored. Basically t his would mean ghting cr ime at any
cost, which is neither a humane nor rat ional approach to criminal justice policy.
e aim of th is article is to consider whether crimina l law cooperation in the EU
extends its scope to the general doctrines of criminal law and what is the role of
e ectiveness in this development. is also means that the role of e ectiveness is
examined with regard to criminal law cooperation of the EU more widely and on a
more general level. While cooperation in criminal law in the EU is commonplace
today, one might question relevance of this a im. e que stion of whether EU crimina l
law extends to general doctrines of criminal law is, however, of utmost importance.
Traditionally, criminal law has had a pronouncedly national character, and its
relationship to national sovereignty has been considered extremely close.6 is
1 Michael S. Moore, Pl acing Blame (Clarendon Press , Oxford 1997), 24.
2 Michael S. Moore, Pl acing Blame, 26–30.
3 For one conceivable de nition of consequentionalism see R.A. Du , Punishment, Communication,
and Community (Oxford Univers ity Press 2001), 3.
4 Ibid.
5 For an overview see Brian Z. Tamananha, Law as a Means to an End: reat to the Rule of Law
(Cambridge Universit y Press 2006).
6 See, e.g., George P. Fletcher, Ba sic Concepts of Crimin al Law (Oxford University Press 199 8), 3–4.
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