ABSTRACT
Modern times are marked by the march of preventive theories of punishment. Prevention is a promise of benefit, of social utility, as accordingly the practices of punishment promise us an impact on future offending. Preventionism has often been understood as a problem and even as a threat, since setting such a vague goal on our criminal law and criminal justice, we might risk loosening all the limiting principles concerning what can be done by means of criminal law. It is precisely these concerns that have triggered a growing interest in the topic. In the following, we will first present some historical lines of development which have prepared us for a turn towards prevention. Interventionist policies of the state towards society are nothing new themselves. My own take on the subject will be exemplified in a discussion of two recent areas of intensive international regulation: money laundering and terrorist financing.
I. Introduction
Modern times are marked by a march of preventive theories of punishment. Prevention is a promise of benefit, of social utility, as accordingly the practices of punishment promise us an impact of future offending.
Criminalizations are always aimed at being preventive, if we build our theories of punishment on ideas of prevention, be it special prevention or general prevention, be it positive general prevention or general deterrence.
Preventionism has often been understood as a problem and even as a threat, since setting such a vague goal on our criminal law and criminal justice, we might risk losing all the limiting principles for what can be done by means of criminal law. It is precisely these concerns that have triggered a growing interest in the topic.Footnote1
In the following, we will first present some historical lines of development which have prepared us for a turn towards prevention. Interventionist policies of the state towards society are nothing new themselves. My own take on the subject will be exemplified in a discussion of two recent areas of intensive international regulation: money laundering and terrorist financing.
The point I wish to make and to add to the current discussion is that the extreme forms of preventionism seem to be linked with criminological and sociological perceptions of new crime phenomena and an additional factor is that preventionism also seems to be linked with the rise of transnational criminal law.Footnote2
Even though preventive criminalisations are a much-debated matter and maybe no consensus has been reached on all points concerning how to handle this phenomenon, some very helpful theoretical analyses have been introduced. I would here refer especially to the one by Andrew Ashworth and Lucia Zedner. They have provided an overall framing of the problematique both in terms of the scope and rationales of this phenomenon as well as its limits. We will later return to this issue after having first looked at issues of prevention more generally. After that, we will look at two chosen areas of criminalization, money laundering and terrorist financing, with their specific contours.Footnote3 Our perspective is that of Finnish criminal law; we will look at how things have played out in the context of Finnish criminal law.
II. Prevention as such is nothing new
If we begin with a Beckerian microeconomic law and economics approach, the rational actor, the economic man, will calculate on the risk of getting caught and the severity of the penal sanction in order to decide whether the risk is worth taking or not. According to such a view, the criminalization including a threat of punishment combined with a system of detecting crimes committed builds a hinder for committing crimes, and it builds a threshold that can be adjusted as regards its functionality by raising the cost of offending for potential actors, and these potential offenders, in turn, are presupposed to react by thinking twice before offending.Footnote4
The utilitarian theories of punishment are a product of enlightenment. They are the utilitarian strand of it. In the nineteenth-century, theories of punishment the lines following Immanuel Kant and G.W.F. Hegel took the retributivist road whereas utilitarian thinkers such as Jeremy Bentham and John Stuart Mill took the preventionist road.
We do not need to go into detail here, since this is not important for the argument developed here. The criminal laws of the nineteenth century were namely still traditional. Thinkers such as P.J.A. Feuerbach, a Kantian scholar, were indeed trying to defend the view that criminal law should be about ordering civil liberties rather than a tool for interventionist policies. Crimes of endangerment were suspected as part of genuine criminal law, says Feuerbach.Footnote5 A crime was a willful decision for a wrong. The idealist philosophy of Kant and Hegel was a dominant source of inspiration In the German criminal law scholarship of the early and mid-nineteenth century. Negligent crimes were only dealt with in passing. Crimes of endangerment were suspicious since they would only with difficulty fit in the idea of ordering liberties under the criminal law.
The Prussian Law of the LandFootnote6 from 1794 had been preventive in its approach and its penal provisions were part of a larger amalgam of norms regulating social life. Crimes of endangerment were all over. The preventive, policing type of regulation called the attention of criminal law theorists who wanted to preserve the structures of criminal laws clean and thus to secure the different genuine characteristics of criminal law. In Continental European legal history, the public law was for centuries seen as based on a virtuous skill of a prince to govern the society. Polizei was a mode of governing society.Footnote7
The Finnish Criminal Code of 1889 is a product of Hegelian criminal law thinking which was leaning on the retributive ideas of punishment and which stands closer to the classical school than its rivals. The provisions on the prerequisites of penal liability were scarce and reflected the classical, traditional views. The majority of criminalized offences were punctual intentional actions with harmful results. Sometimes attempt was set under punishment, sometimes not. Crimes of endangerment were identified, and especially chapter 34 of Finnish Criminal Code on endangerment inherited the language developed in the Prussian Law and the land on crimes with a generally endangering nature (Allgemeingefährliche Straftaten).Footnote8
Later even other preventionist ideas surfaced as, for instance, a punishment of isolation of dangerous recidivists was adopted in 1932. The idea that society needs to be protected against the threat proposed by dangerous recidivists was, of course, a product of the new preventionist school of Franz von Liszt, who maintained that criminal law should perform the function of responding to the needs of protection of the society as concerned the threat posed by the criminals.
The twentieth century was mainly dominated by theories of individual prevention and treatment, and less attention was given to the contents of the criminalisations themselves. The rise of special prevention as an aim of punishment did not as such lead to a rethinking about the ways in which offence descriptions of individual criminalisations were formulated. It was more the sentencing part which was being influenced. When an offence was seen as a symptom of a personal trait and character, it was only natural that the punishment would have to address the personal traits that stood behind the offending. It was only through the critique of the treatment ideology that the path was open to the return of some of the classical ideas, namely that the punishment had to be fair and limited according to the principle of act-proportionality.
It was only when the special-prevention oriented thought lost its appeal towards the end of 1960s that a new interest in the functions of the criminalisations started growing. This entire package was later being interpreted in the light of other types of preventionist theories. It was the legislature which started seeing criminal law as a tool to regulate society. If the mid-twentieth century still saw the domination of special prevention theories, from 1970s onwards the theories of general prevention gained more ground in Finnish criminal law theorizing. Simultaneously major revisions were started to adjust the criminal law to a role of regulating life in society. An important committee issued its report on the principles which should be followed in the reform of the Finnish Criminal Code.Footnote9
In the Finnish setting, the preventive turn in thinking about criminalisations was not that radical since it was also a result of social modernization and the rise of a modern welfare state. In criminal policy terms utilitarianism was natural since criminalisations were only regarded as grounded when they could be expected to bring about more benefit than harm.
It is in fact interesting to note that in the Finnish context, the 1970s was still a time when rethinking the sphere of criminal law was not linked to high-profile security concerns such as international terrorism of international organized crime. The new fields under scrutiny dealt with environmental offences, safety at work, and economic crimes such as tax fraud. Crimes related to industrial and business activities entered the scene. The typical feature of the new criminalisations was that they concerned individual criminal acts committed in the context of lawful economic activity. The resources to combat criminal acts were to be found inside the company organisations themselves: the board and other leadership were set under the duty to supervise the activities carried out by the staff, and in case of safety at work, for instance, a bureaucracy was being created to monitor the performance of the companies in their efforts to diminish work-related accidents. The new criminalizations that were needed to be brought about changes in criminalization techniques as they challenged the paradigm of the time, but they were still somewhat manageable as adjustments.
Already in the 1970s the idea of risk become important. An important example was the offence of drunken driving. The earlier flexible regulation was replaced by clear standard stating that all driving of motor vehicles in road traffic was prohibited if the driver had alcohol in the blood exceeding the amount of 0.5 pro mille (BAC). An individual assessment was replaced by a general standard in order to introduce a more preventive approach. Earlier on the typical drunken driver offence was linked to a traffic accident. From now on the traffic was being monitored by routine controls which enabled the traffic police to intervene earlier, before any accident. This way of control proved efficient since people soon learned the rules of the game and the proportion of alcohol-related accidents started diminishing. This construction of drunken driving could be regarded as Nordic, and it is a good example of a crime definition which builds on criminological knowledge. In road traffic, the driver has the duty to observe a host of traffic rules which are constitutive to the day-to-day traffic and without which the traffic would not have its regular character.
The new interventionist and preventionist crime constructions were sociologically informed and well-aligned with the idea that crime control could serve civic learning and education for the benefit of traffic safety. The control did not need to be harsh as the drivers clearly grew sensitive to the requirements set by the law. Already the temporary prohibition to drive resulting from having been caught drunken driving motivated avoiding trouble, and in the more severe cases reoffending often was linked rather to problems with alcoholism than a persistent will to challenge the drunken driving norms themselves.
Drunken driving regulation is a good example of a somewhat preventionist mode of penal control which plays out in the context of a rich social discourse and communication of values and blameworthiness. Most of the drivers would seek to orientate towards avoidance of the harms as regards the use of alcohol in the context of driving. The preventive aspect of the regulation was visible not only in the systemic approach in which the entire traffic system was looked at but also in the definition of the offense itself: the element of endangerment was eliminated completely. The dangerousness of drunken driving was regarded as presumed. The driver could not challenge the presumption that an element of danger had been present since it was simply a matter of definition. The legislature solved the issue by introducing an absolute prohibition to drive while intoxicated.
In Finnish criminal law, the functionalist tendency to use criminal law as a tool to govern society and to react to social problems has been combined with a liberal and constitutionalist idea of protecting the rights of the individual. Thus, the neo-classical thinking which was adopted was instrumentalist only in a narrow sense. Principles of individual guilt and act-proportionality of the punishment became the leading ones. The orientation of general prevention did not lead to a strict crime control paradigm since that was softened by the parallel development towards better protection of the rights of the individual as indicated by the growing role of the constitution in matters of criminal law and criminal justice. The process of modernization of criminal law began with work on problems typical of a welfare state: environmental offences, traffic offences, tax offences, and safety at work offences. Only towards the turn to a new millennium the new contexts of security-related issues came from the shadows to the fore: organized crime, money laundering, and terrorist offences. And, it is here that the tensions will grow on how to make these pieces of law fit our legitimate criminal law order.
Preventive offences exist, this is no longer news. Ashworth and Zedner, whom we referred to earlier, have presented a model of organizing the preventive offences and they suggest with good reasons that certain limiting principles would also have to be adopted if we wish to maintain the legitimacy of our use of preventive offences. They formulate two requirements:Footnote10
- All offences, included those enacted on a preventive rationale, ought to comply with rule-of-law values, such as maximum certainty of definition, fair warning, and fair labelling, so as clearly to identify the wrong that they penalize, for the purpose of guiding conduct and publicly evaluating the wrong done.
- All offences, including those enacted on a preventive rationale, should be so drafted as to require the court to adjudicate on the particular wrong targeted, and not on some broader conduct.
The two requirements are a response to the obvious challenge posed by the regulatory techniques adopted and applied when regulating phenomena of the last-mentioned type. We would now, after having introduced the setting, have a look at two other examples of preventive criminalisations which take the discussion to new domains.
III. Money laundering as an independent crime
Suppressing money laundering has been over the last twenty or thirty years a growing emphasis in international criminal policy, and it merits this for obvious reasons. Money laundering as a separate crime originates from the U.S., where the views were developed that laundering of the profits of crime, in this case, drug trafficking, was to be taken as an offence which is independent of the trafficking, the predicate offence.Footnote11
International organized crime, such as drug trafficking, is a highly profitable activity, which brings the criminal organizations spectacular sums of money. The criminal organizations have been able to create ‘economic circuits’ in which the profits of crime will be invested in new criminal efforts. Profit-driven cross-border organized crime cannot be prevented as easily as we prevent drunken driving since organized criminal groups have created an identity as outlaws and have made their illegal business a profession.Footnote12
Hans-Jörg Albrecht has observed that organized crime can be traced to two theoretical approaches. The first one focuses on the feature that organized crime is linked with traditional sub-cultures of modern metropolis, and these sub-cultures in turn are dependent on shadow economies. The second one stresses organized crime as profit-driven activity which basically follows the same economic rationality as other, lawful enterprises. Differences fade away and organized crime becomes indistinguishable from other types of economic behavior. As regards money laundering, this feature is present: dealing with assets is fully legitimate behavior. Only the criminal origin of the assets makes it illegal.Footnote13
Suppression of organized crime is clearly more difficult than controlling drunken driving since the traffickers and dealers of drugs, for instance, are committed to what they do and will continue unless intervened by law enforcement authorities. Suppression of international organized crime has led to the emergence of so-called global governance of crime. In Europe, also the European Union has been actively involved in addressing these issues.Footnote14
The running of such illegal business is, however, difficult, unless at least some part of the profit can be laundered by concealing the criminal origins of it. The laundered assets enable criminal organizations to operate on both levels of the economy, the legal and the illegal one, and they will accordingly have a much more solid foothold in society. We know of countries in which organized criminal groups have a hold of even on the politics of that country.
As regards anti-money laundering, the policy response has been to regulate the duties of banks, insurance companies, law firms, and other relevant actors to monitor their clients and to report dubious transactions to a national anti-money laundering centre; in Finland, such an office is located within the Central Bureau of Investigation.
What has emerged is a two-tier regulation. The first one consists of Finnish legal system of the law on the prevention of money laundering and terrorist financing. It sets a host of duties for the private sectors mentioned above and it sanctions the breach of those duties by administrative sanctions which can be considerable. The criminal law edge of money laundering, in turn, has been regulated in Chapter 32 of Finnish Criminal Code.
Since the recent EU directive on the matter, the specific wrong of money laundering has been defined in concealing of the criminal origin of the assets in question. The Finnish Penal Code entails several criminalizations on the matter. Most important of them are the simple money laundering offence and its aggravated form. Also, negligent money laundering has been criminalised.
The idea of money laundering is to hit organized crime in its weak point and set limits to its ability to run its circular economy.
Why then did I wish to discuss money laundering here, as a form of preventive criminalization? The reason is specifically this phenomenal context. The outdated view was to suppress organized crime, such as drug trafficking, without seeing the circular economy contours which stand for its ability to maintain itself even under the harsh control of the police and the judicial system. What happens is only that the more the police gets a hold on the drugs, the higher the prices, and the bigger the profits.
In previous times, the Finnish criminal law scholars were reluctant to accept that self-laundering would be determined a crime. This meant situations in which the launderer was also involved in the commission of so-called predicate offence. The old principle was inherited from another criminalization: the hiding of stolen goods. The blameworthiness of the theft namely already included the aspect of concealing, and therefore it was not regarded proper to punish for that separately. Thus the thief should not be deemed guilty of the concealing offence of the stolen property.
In the Finnish criminal law drafting practice, the tension between the two ways of thought showed in that in 2010 a first working group set by the Ministry of Justice strongly defended the view that money laundering offense should be built on the same logic as the hiding of stolen goods. It was regarded as a breach of fundamental principles of penal liability to think otherwise. The breach had to do with the fact that the wrongfulness of the hiding already had been taken into account when deciding on the abstract penal value of the offence. Punishing for the second time for an offence which already was part of a previous one was thus risking the fairness of the entire system of criminal law.Footnote15
In 2011, another working group, now consisting of high-level experts, was set up to look at the issue of whether the pressing difficulty of addressing self-laundering could be solved one way or another. This group finally proposed a solution which meant a reinterpretation of the entire problem. Namely, the old principle that self-laundering could not be criminalized for reasons of principle was now abandoned in the cases of grave money laundering in which the participation in the predicate offence was minor compared to the overall crime. In that case, it was justified that the self-launderer was held criminally liable for the laundering as it exceeded the penal value of the involvement in the predicate offence. The Government Bill (138/2011) referred to a changed approach: the previous starting point of looking at the role of and individual actor as part of the predicate offence and then as the (self-)launderer had missed the point. Self-laundering was more often than not a situation in which the launderer was serving the entire criminal organization and thus securing its capital and capacity for continued activity.Footnote16
The break-through of the new principle made it to the legislation, but it remained a dead letter still. It was simply too difficult to prove the overall contribution of the suspect on the side of self-laundering.
The next round of rethinking had to do with the negotiations of the new EU directive on the issue. Here again, the matter of rendering self-laundering of the profits of crime punishable turned out to be a difficult issue not only for Finland but for some others as well, including Germany. In the negotiations even the issue of whether the so-called red flag should be waved – this means the reference to the emergency brake system that had been created in the EU Lisbon Treaty when the criminal law collaboration was transformed to follow the ordinary legislative procedure which included qualified majority decision-making. The loss of the unanimity principle had been compensated by giving the Member States the right to indicate if the proposed directive would clash with fundamental legal principles recognized by that country’s legal system. Finally, no such reference was needed.
The Directive was adopted in 2018, and it requires in its Art. 3 the Member States to criminalize the money laundering offences without including any exception concerning self-laundering.Footnote17 As a result, also the Finnish Criminal Code was finally amended accordingly.
If we now look back at the entire debate, we may note that breaking down the old and outdated legal principle which had applied in hiding stolen good necessitated that the wrongfulness of money laundering was grasped as independent. This was the case especially when in the organized crime setting the profits of the criminality were re-invested in a next round of criminality, or when the profits were – finally taken out from the criminal circular economy to do other harm, now as part of the legal economy.
The prevention and suppression of organized crime required the development of a sociology of this crime phenomenon. It was the circular economy which had to be addressed, and with the help of hitting the economic resources could an effort be made to narrow down the conditions of its existence. Then, new phenomenology of this criminality enabled the development of adequate legal principles for the purposes of crime suppression and crime prevention.
There is also another dimension involved. This dimension can the easiest way be demonstrated by giving a concrete example.
Namely, many actors in the banking, insurance, and other sectors have been obliged to carry out effective surveillance of their clients’ activities may also risk being prosecuted for money laundering offence, and not only for failures in the exercise of the monitoring duties.
In a recent decision, the Supreme Court of Finland (Supreme Court 2021:6) has ordered a corporate fine on an association which was running online betting services. One of the clients had been using significant sums of money in the betting. The association was obliged to monitor the clients’ activities and it used automated tools to do this. They had correctly picked up that individual for a closer scrutiny, and they had noted that she was using sums that clearly exceeded what she could lawfully possess. She was an accountant so that she could easily have access to other persons’ assets. The case was reported to the Anti-Money Laundering Office at the National Bureau of Investigation, but the customer was allowed still to continue the betting.
According to the Supreme Court, this constituted a negligent money laundering offence on the part of the association. A corporate fine was being issued, even though no individual staff member was found guilty of the offence. The interesting matter about this case is that due to the negligent money laundering offence the association was in fact really punished for this. The preventive duties arising on the basis of the specific legislation regulating the monitoring duties, which themselves were not set under the threat of punishment, could through a backdoor find a real criminal liability. Thus, there is a link between the preventive administrative regimes and the scope of money laundering offences.
IV. Financing and other support of terrorism
The aim of the article is to present the phenomenal contours of preventive criminalization and the risks it entails to individual citizens as well as to corporate actors. It is not a coincidence that these two areas, that I have picked up, stand out for some common characteristics. They both have to do with issues of high security and phenomena which have attracted a lot of international criminal policy attention.
Terrorism has at least since September 11 been the enemy and concern number one for the international community understood as the community of states as well as peoples since it aims at attacking the core values of society by means of terror. The concept itself was born in the context of the French revolution and the terror involved more than two hundred years ago.
If organized crime is a phenomenon one seeks to keep in control by hitting its economic resources, in the fight against terrorism this feature is even more apparent. The legal community wishes to use all possible measures to reduce the risk of terrorist activities, and clearly, since we know that the terrorists themselves may be persistent, it is well-reasoned to focus on all kinds of necessary conditions for terrorist activity.
One clear sign of a highly preventive approach is that the criminalisations cover a lot of activities which take place clearly before any acts which would fall under ordinary aiding and abetting or other criminal participation in core terrorist offence exist. The Finnish criminal law follows the classical doctrine of participation which is in fact helpful in identifying the exceptional features of proactive and preventive parts of criminalisations in these domains. In legal orders which have abandoned the traditional doctrine of complicity and have replaced it with a naturalist, causal theory of contribution, it may be much more difficult to identify such proactive criminalization.Footnote18
Namely, even financing of terrorism or even assets received for travel in terrorist purposes can be held criminal. Many forms of promotion could be regarded as contributions at least in the meaning of contributory cause. The Danish criminal law, to give an example, has adopted a naturalistic theory of complicity in the spirit of the naturalism of Franz von Liszt.
In Finnish criminal law criminal preparation for crime is only being recognized for a few cases. The common law doctrine of conspiracy is almost unknown. How is then terrorist financing being criminalized in Finnish criminal law?
The first form is the usual one: giving assets to knowingly fund the execution of a specific terrorist plan. As such, this is not so surprising.
The second form deals with funding of a terrorist group. In here, the criminalization is already more loosely connected with terrorist activity since the knowledge of the supporter only needs to cover the nature of the grouping as a terrorist group.
The most recent criminalization in the Finnish Penal Code concerns financing of a terrorist.Footnote19 This is an interesting penal provision since the perpetrator of the offence of financing does not have to know of any direct terrorist plan. The criminalization in fact seems like a parallel to the provision concerning financing of a terrorist group. The dangerousness of financing has to do with the fact that it increases the risk potential of a terrorist group.
What if the terrorist organization runs a hospital or kindergarten and the supporter rather aims at giving assets for such a humanitarian purpose? In Finnish law, such funding is in principle not regarded as covered by the penal provision, but there could still be cases where this would be regarded as punishable since also such financing increases the risk potential of the organisation due to the fact that the funding person lacks the capacity to control the use of that money.
As regards financing of a single terrorist, all this is even more unclear. How do we know that a person is a terrorist? It may be the case that he or she has been listed as terrorist by some institution, such as the UN or EU, and the financing person knows about this. Such listing most likely is reasonable, but there might also be more dubious cases. There may be governments which list representatives of the opposition as terrorists for political reasons.
A person may be known for ideological sympathies to the goals of a terrorist group, but even this should not be yet a proof of him or her being called terrorist.
A terrorist is a person who ‘generally commits terrorist offences’, but does not have to be known to be involved in any particular plot at the moment. Maybe the crucial thing is that the person has some history in the field and that it is known that he or she has not abandoned the terrorist motivations and beliefs. Somehow the idea of having an ‘identity-based criminalization concerning terrorist financing’ runs contrary what we see usually in an act-oriented criminal law. This is certainly one of the clearest examples of so-called enemy criminal law.Footnote20
One new criminalization deals with terrorist travels. Also funding the travelling in order to commit a terrorist has been set under punishment. The same goes for travelling in order to finance terrorism.
We could list many more examples of supportive activities of terrorist offences. Also a public encouragement to terrorist activities has been set under punishment. Receiving and giving training in terrorism has been set under punishment as has also been the recruitment. All this combined means that the criminal law response really seeks to address the phenomenon on a broad front and with a predictive tone.
In the Finnish law, a plain membership in a terrorist organization has not been set under punishment. Rather, participation in the activities of a terrorist organization has to manifest itself as performing a function in that organisation. Ordinary household activities are not enough, even though they as such might be contributory causes to terrorist fighters activities. This issue has been somewhat discussed in Europe in the context of the housewives of ISIS terrorists and whether they could and should be prosecuted after having returned home after the collapse of the ISIS caliphate.
The reasons why the Finnish Penal Code has been reluctant to accept mere membership as a criminal act have to do with the protection of the rights of the individual. The terrorist organization does not usually keep records of their members. It is important to require that for participation in the activities, an active contribution is being required.
In both cases, that of organized crime and terrorism, the offenders have adopted attitudes different from the ordinary, law-abiding persons. It is precisely this specific feature, and the dangers related to it, which may justify such a harsh reaction by the criminal policy maker. We should, however, be mindful, that even under such circumstances we have to grant the perpetrators the benefit of judging on them by following the rule of law principles. We should never allow criminal law to be used instrumentally as a tool of war. Otherwise, we will weaken the legitimacy of our entire criminal justice system. This point precisely needs to be kept in mind. We will have to find ways to broaden the coverage of our penal provisions, but still keep them rooted in the legal forms that guarantee a fair and predictable application.
V. Conclusion
To sum up, preventive criminalization seems to be a phenomenon which we meet especially in areas of criminal law that deal with high-security interests of the society. Such forms of criminality have motivated a search for comprehensive criminal law protection which is different from the ordinary since usually criminal law would only provide fragmentary protection to the relevant legal interests.
As the distance between the criminalized action and the consequences that we wish to prevent increases, we have to be more alert in requiring a link still. The development we have described earlier strengthens the responsibilities of the legislature since these criminalisations in a way increase the distance between the criminalized act and the harm to be prevented. In some sense at the same time the contents of criminal law norms become emptier which also weakens the possibilities for a defense.
Predictive criminalization is an important test case for criminal law theory. We need to be mindful of the quality of criminal law legislation. In the analysis presented by Andrew Ashworth and Lucia Zedner, a set of restraining principles was formulated to safeguard for maintaining the lead values and principles of criminal law when stretching criminal law protection with a preventionist aim. As indicated above, they put a special emphasis on the principle that the harm prevented should not be all too remote from the criminalized act itself, and also the legislature should be mindful of the rule of law standards.
If that legislation loses its capacity to steer the courts in concrete cases, the courts may not be able to complement that loss. We need to be aware of the risks involved in rendering our criminal laws too flexible especially in matters in which the state has a strong interest to press through its interests and thus use criminal law as a tool of control.Footnote21
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 See, e.g., Andrew Ashworth, Lucia Zedner, Patrick Tomlin (eds.), Prevention and the Limits of the Criminal Law (OUP 2013).
2 On the contours of transnational criminal law, see Neil Boister, Transnational Criminal Law (2nd edn, OUP 2018).
3 The Chapter Preventive Offences in the Criminal Law: ‘Rationales and Limits’ in Andrew Ashworth – Lucia Zedner(eds), Preventive Justice (OUP 2014) 95–118.
4 Gary S. Becker, ‘Crime and Punishment: An Economic Approach’ (1968) March-April 76 (2) Journal of Political Economy 169.
5 Felix Herzog, Gesellschaftliche Unsicherheit und strafrechtliche Daseinsvorsorge. Studien zur Vorverlegung des Strafrechtsschutzes in den Gefährdungsbereich. V. Decker's Verl. Schenck, (Heidelberg 1991) 7–10.
6 Allgemeines Landrecht für die Preussische Staaten.
7 Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland Band 1: Reichspublizistik und Policeywissenschaft 1600 bis 1800. C.H.Beck, Munchen 1988.
8 See, generally, Kimmo Nuotio, ‘The transformation of criminal law and criminal law theory in Finland and China’ (2017), 5(1) Peking University Law Journal 1.
9 See, generally, Raimo Lahti, ‘Recodifying the Finnish Criminal Code of 1889: Towards a More Efficient, Just and Humane Criminal Law, in Raimo Lahti, Towards an Efficient, Just and Humane Criminal Justice. Nordic Essays on Criminal Law, Criminology and Criminal Policy 1972–2020.The Finnish Lawyers’ Publishing Company, (Helsinki 2021) 35–50. Original source: Israel Law Review, Vol. 27, Nos 1–2, 1993, pp. 100–117.
10 Andrew (n 4) 114.
11 See, e.g., Neil Boister 2018 (fn 1) 171–73.
12 See, e.g., Elizabeth Joyce, ‘Expanding the International Regime on Money laundering in response to Transnational Organized Crime, Terrorism, and Corruption’ in Philip reiche (ed), Handbook of Transnational Crime & Justice (Sage 2005)79–97.
13 Hans-Jörg Albrecht, ‘Police, policing and organized crime: lessons from organized crime research, European Police Science and Research Bulletin’ (2017) Police Sci. & Res. Bull. 207, 208–9.
14 See, for instance, Valsamis Mitsilegas, ‘The European Union and the Global Governance of Crime’ in Valsamis Mitsilegas, Peter Alldridge, Leonidas Cheliotis (eds), Globalisation, Criminal law and Criminal Justice (OUP 2015) 153–198.
15 See, e.g., the discussion in Neil Boister 2018 (fn 1) 176.
16 The Government Bill (138/2011), s 6.
17 EU, ‘Directive 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law’ OJ L 284, 12.11.2018, 22–30.
18 As regards the Nordic countries, a description of the differences and commonalities of the doctrines of participation to crime, see Nuotio, Kimmo, ‘Participation in Crime in Nordic Criminal Laws: Variations on a Theme’ in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki(eds), Nordic law – Between Tradition and Dynamism (Intersentia 2007) 127.
19 Government Bill 135/2020; Memorandum of the Law Committee of the Finnish Parliament 2/2021.
20 This concept has been elaborated by the German scholar Günther Jakobs. See, e.g., Günther Jakobs, ‘An den Grenzen rechtlicher Orientierung: Feindstrafrecht, in Nullum ius sine scientia’ (2008) Festschrift für Jaan Sootak zum 60. Geburtstag am 16 131.
21 On a critical analysis, see, e.g. Heike Jung, ‘The Uses and Abuses of Criminal Law Responses to Terrorism’ in Kimmo Nuotio (ed), Festschrift in Honour of Raimo Lahti (Forum Iuris 2007) 97–109.