Overuse of Criminalization: a Philosophical and Political Approach on the Latin-American Situation

Summary

TERMINOLOGICAL CLARIFICATION AND CONCEPTUAL DELIMITATION

The English word “overuse” can be translated into Spanish, the lecturer's mother tongue, as “excessive use” or “overwork”. Nonetheless, as this word is followed by the complement “criminalization”, it seems more appropriate to translate it as “abuse”.

Abuse or overuse is not just using something too much or using it excessively, but to use it in an improper, inadequate or unfair manner. Also the term “abuse”, in the English language, means mistreatment, wrongdoing, and it can even mean an aggression. And this is precisely the meaning of the phrase “overuse of criminalization”: an unlawful act of violence carried out by the State through its criminal laws against the citizens. Consequently, it is not merely the unnecessary use of the law to criminalize conducts or the barely quantitative censorship of this proceeding, but it is something deeper, qualitative.

There was full awareness of this fact at the founding moment of the Rule of Law, the French Declaration of the Rights of Man and the Citizen. Article 8° asserted as principle the minimal need or intervention of the state punishment: “The law shall not provide for punishments other than those strictly and obviously necessary”. The mindset of the reformers of the Enlightenment understood that an unnecessary punishment accounts for something more serious than a mere excess by the legislator, who was able to overlook the law because it was not absolutely necessary. On the contrary, it had to be considered as a tyrannical act; according to Beccaria, “an act of violence perpetrated by one or many upon a private citizen”, and in accordance with the terminology of our time, a factual imposition rather than a legal punishment. Certainly, regardless of the individual and social effects of unnecessary punishment, in the underlying abuse, the legitimacy of the criminalization of conducts, situations or individuals and, in the end, the authority of the political-legal title by virtue of which it is established by the government is at stake. The mindset of the reformers of the Enlightenment understood that an unnecessary punishment accounts for something more serious than a mere excess by the legislator, who was able to overlook the law because it was not absolutely necessary.