INTRODUCTION

The central question of this research revolves around criminalisation of forced marriage: should this practice be criminalised, and, if so, how? Should it be prohibited as a distinct, separate offence, or under the heading of (generic) existing crimes? Decisions regarding criminalisation are, for a large part, based on policy choices and political considerations, and are therefore dependent on the political hue of the incumbent government. For example, in the Netherlands, (criminal) law was traditionally used more or less exclusively as an instrument of ‘codification’, that is to say as a means to record existing moral views. However, as a result of the development of Dutch society from a welfare state into a security state, coupled with the growing influence of populism, (criminal) law is increasingly used as an instrument of ‘modification’, i.e. as a means to change views and behaviour in society. This has led to a trend of increased willingness to penalise and thus to a proliferation of criminal offences. The same can be said for England, indeed, it has been stated that Anglo-American jurisdictions in general create offences in a casual and routine manner.

Yet irrespective of the highly political nature of criminalisation, certain guidelines can be distilled from legal doctrine. The issue of criminalisation has exercised and still exercises many minds and the question of what justifies criminal prohibition has inspired lawyers and philosophers to fill reams upon reams of paper, exploring the conditions that must be satisfied before the state may proscribe certain behaviour, thereby subjecting the culpable offender to criminal liability and (subsequently) punishment. Throughout the years, different theories of criminalisation have been articulated. There are clear similarities between these theories, which, for a large part, build on each other. As De Hullu – one of the leading Dutch criminal law scholars – noted, what most theories have in common is that they require that the necessity and added value of criminalisation must be demonstrated, either from a practical or from an ideological or legal theoretical point of view.