like in the example given above. We have purposely left out any questions regard-
ing the more complex scenario of the liability of multiple perpetrators, such as
accomplices and others that contribute to the realization of an offense.
The last sections of the chapter deal with the law of criminal procedure.
Section7.9addresses the question what interests are at stake in the criminal
process. Section7.10seeks to answer the question of what the basic structure of
the criminal process looks like, while Sect.7.11discusses how the criminal justice
systems can be categorized according to the their features. Section7.12revolves
around the cornerstone principle of the presumption of innocence and explores
what it means for an individual to be presumed innocent. The following part
examines what other basic principles should apply in order for criminal proceedings
to respect the individuals’ fundamental rights (Sect.7.13). The chapter will end
with some brief concluding remarks (Sect.7.14).
7.2 Which Conduct Ought to Be Criminal? The Criminalization
Debate
It has been explained above that, among others, criminal law is a mechanism for the
preservation of social order. A fundamental preliminary question in this connection
is as follows: which forms of conduct should rightly be dealt with by means of
criminal law? To criminalize a certain kind of conduct is to declare that it amounts
to a public wrong and that therefore it ought to be avoided. To provide a pragmatic
incentive to adhere to its rules, criminal law uses public censure and punishment as
a sanction to rule violations. The consequences of violating criminal norms are so
onerous and severe for citizens that the decision to criminalize conduct should
never be taken lightly and should always require the careful consideration of a
variety of competing interests and factors. Failure to do so not only may lead to
overcriminalization—it is, for instance, now a criminal offense in the Netherlands
for a person under 18 to possess or consume alcoholic beverages in public places—
but also may create an oppressive criminal justice system.
Unfortunately, there exists no ready-made formula by which we can determine
whether or not criminal law should be used in a certain situation. There is no single
master principle from which the content of criminal law can be derived. The range
of actual and potential crimes is simply so wide and varied that this seems
unattainable. In practice, we will therefore have to accept that the boundaries of
criminal law are not fixed but are rather socially, historically, and politically
determined. Consider, for instance, that adultery and witchcraft were once well-
established criminal wrongs, while it was at the same time considered to be legally
impossible for a husband to rape his wife. Since then, the views of society and
accordingly the law have drastically changed. Nevertheless, it remains important to
identify interests that are generally thought to warrant the use of criminal law and
refine notions such as harm and wrongdoing that usually influence and inform the
criminalization debate within criminal justice systems.
124 J. Keiler et al.