2025-12-13 –, Room03
This paper critically examines normative theories of criminalisation—frameworks determining what conduct merits criminalisation and state punishment—across key East and Central Asian jurisdictions. Asian criminalisation discourse is dominated by two paradigms: social harm theory (emphasising damage to collective social relations, rooted in Soviet ideology and historically prevalent in Central Asia and China) and legal interest theory (prioritising protection of legally cognisable interests, derived from German jurisprudence and influential in Japan, Taiwan, and post-1990s China). Scholarly comparative analysis of these theories remains underdeveloped. Addressing this gap, the paper analyses the evolution of both theories in China, a critical case study demonstrating their influence and potential for state overcriminalisation. Comparative analysis reveals that while legal interest theory represents a doctrinal advance beyond social harm theory’s collectivist focus, both share fundamental limitations: conceptual circularity, over-inclusiveness in defining criminalisable conduct, and susceptibility to politicisation or majoritarian interpretation. Persistent reliance on singular theoretical principles within these diverse contexts inherently fails to constrain state penal power effectively, exacerbating risks of overcriminalisation, excessive punishment, and systemic inequity. The paper contends that promoting equitable criminalisation in Asia’s pluralistic legal landscapes necessitates moving beyond monopolistic adherence to any singular paradigm—whether domestically entrenched, politically transplanted, or regionally dominant. Achieving legitimate criminalisation requires contextually grounded evaluations, acknowledging dynamic interdependencies between criminalisation and the unique legal-cultural, historical, and social contexts of Asian jurisdictions. The paper advocates prioritising contextual legitimacy to mitigate potential unjust criminalisation and punishment arising from the abuse and overuse of state penal power.
University of Sussex
Role in the Panel:Paper Presenter
