|New parliament, new crimes?|
But does this amount to 'over-criminalisation', as some have contended? Well it depends on your measure, and this is where things get notoriously hard to judge. Having lots of offences on the books might looks bad, but if few are actually enforced, then this seems more like a problem of bad legislation or an over-active parliament than over-criminalisation. By the same token, it is conceivable to have a system consisting of a single offence so brouad (do no wrong!) that it could could be enforced in a draconian manner. So should we measure by the number of offences or something else, like the number of people prosecuted in any given year, or these actually convicted? And even then would there be a problem if punishments were minor and treated as such by members of society? Such questions go to the heart of theoretical issues about the criminal law. I cannot begin to answer them all here, but against the grain of much recent discussion of these issues, which focuses on the nature of wrongs and wrongdoing, I want to suggest that a crucial factor in making such judgements must be an understanding of the function of the modern criminal law. In one of his final publications, Neil MacCormick wrote that the criminal law should "contribute to securing the conditions of civility and social peace, thus sustaining civil society". That is a lot to ask, but if it is not too much to ask, then we may find that we do not have too much criminal law.