The functionality of the criminal justice system

About the project

The research programme ‘Functionality of the criminal justice system’ explores the functional dimension of the criminal justice system – with special focus on the areas of police law and criminal procedure.

Main content

It explores the relation between the system’s normative and institutional framework and its ability to perform given aims, tasks or functions – such as for instance the police’s task of efficient crime prevention. The aim is to contribute to a deeper understanding of the functional premises of different norms, concepts and institutional solutions of the system, and also to a deeper understanding of the system as a (functioning) whole.

Functionality refers generally to the quality of being functional, in relation to the ability of something to perform a given task or function, or to fulfill a given purpose. As such, the concept of functionality has in the legal context clear links to (practical) usefulness, efficiency and utility. It evokes the idea that law responds to society’s needs, and seems as such generally attractive. At the same time it seems clear that the argument of functionality, at least from the point of view of criminal law science, has certain limitations.

But how should then functionality more specifically be understood in the criminal justice system? And how should the functional argument steer the system’s content and development? What requirements of functionality steer, or should steer, for instance, the rules concerning police investigation of crime, the distinction and co-ordination between police power and military power, the room for discretion of the public prosecutor, possibilities for confiscation of stolen goods, or the construction of criminal intent, if any? And how should requirements of functionality interplay with the general principles of criminal law – as requirements for penal power? What are, more generally, the limitations of arguments of functionality in the criminal justice system? These kinds of questions about the meaning and impact of the functional argument in the criminal justice system are at the apex of this research programme.

As a basic starting point, the criminal justice system could be understood through its function to exercise penal power. This system is characterized by its function to deliver and implement different kinds of authoritative decisions concerning crime and punishment. As such, it includes both a system of norms (centred on the criminal law) and an institutional organisation that consists of all those institutions that officially respond to the commission of offences (such as the police, prosecutors, judges or prison services).

The criminal justice system is paradigmatically justified through its capacity to contribute to reduced criminality, by means of efficient crime prevention and crime control. At the same time, the system has to secure individual autonomy and rights, vis-à-vis state power. These requirements, of efficient crime control and efficient control of state power, could be articulated as basic functional requirements of the system. In order to contribute to the fulfilment of its basic functions, the criminal justice system must, however, perform a multitude of different more specific tasks at different institutional levels. In this regard, the police have, for instance, an essential role regarding the prevention of crime.

Therefore, the basic functional requirements of the criminal justice system link to a multitude of more specific questions. The individual research projects within the programme, in this regard, aim at exploring the functional dimension of different specific aspects of the criminal justice system.

The programme is motivated by a growing need of integrating a functional perspective into the research agenda of criminal law science. Current criminal justice systems are increasingly challenged with regard to basic functional requirements, mainly regarding their ability to secure efficient crime control. The criminal process, including the stage of preliminary investigation, seems particularly to struggle with certain efficiency problems and unsatisfactory disclosure rates. The reasons are of course many, such as an overload of complex cases, lacking recourses etc.; but in essential aspects this kind of efficiency problems raises questions about the functionality of the system. The underlying core problem is how the functionality of the system could be continuously secured.

Due to different kinds of societal developments the criminal justice system is also more generally put under pressure, in relation to the given functions or aims that different normative and institutional solutions are meant to fulfil. To provide some examples: The on-going Internationalisation creates societal mobility and increased immigration. This not only affects the opportunities for crimes, but also creates difficult problems in the border between, for instance, criminal law and immigration law. Technological inventions create new forms of crime (cf., Internet-crime). In addition, such inventions create new opportunities for, for instance, surveillance and evidence (cf. DNA) or new forms of punishments (cf., foot-chains). It is, however, not always obvious what kind of functional solutions should be integrated in the criminal justice system in order to deal with current challenges, or how to make use of new technology. The current development could to some extent be criticised for over-using the argument of functionality, without deeper consideration of what kind of (functional) qualities the criminal justice system should have. This research programme aims, in this regard, to contribute to an adequate direction of the development of the criminal justice system, by means of knowledge about the meaning and limitations of the functionality argument.

With its thematic focus on functionality, the project necessarily directs its attention towards the perspective of the actors of the system, about how the system works in practice. The project also aims at promoting dialogue with these actors, both in order to make use of their knowledge and, particularly, in order to communicate the scientific perspective to them. More generally, the project aims at integrating empirical knowledge about how the system works in society through interdisciplinary research cooperation. By integrating such empirical perspectives, the project aims at discussing the system also beyond conventional distinctions between different legal areas, in order to reach at functional and adequate normative and institutional solutions.