Difference Between Legalisation and Decriminalisation

Edited by Diffzy | Updated on: August 06, 2022

       

Difference Between Legalisation and Decriminalisation Difference Between Legalisation and Decriminalisation

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Introduction

It is so frustrating to keep using Google every next minute. Do not get me wrong; I love its speed and usefulness – we would be in a big mess were it not for Google. Everyone loves Google. Trashing Google is not what I aim to do here. It is the task of having to use the search engine for all the confusing terms we come across. Especially while watching an intense courtroom battle. Arraignment, malfeasance, recusal, probate, deposition, appeal, clemency. The list of words is endless; their meanings are so complicated that it boggles minds.

Terms in law are critical. Along with being critical, they are often confusing, especially to laypeople, since most of the terms can be changed with just a word to change their entire meaning. Discussing law and crime shows with your friends who are lawyers is such a task because they most certainly will superiorly smirk at your naïveté. You have enough condescension from your family members and nosy relatives; why add lawyer friends you occasionally see to the list? And mind you, they will remember your little slips, even if only to lord it over you. And you can live without that.

Legalisation vs. Decriminalisation

Let us look at two more commonly used legal terms that could intervene in our daily conversation. Legalisation and decriminalisation are part of the legal jargon that sounds like they mean the same but are very different. The term - Legalisation is used when a particular action is made legal. Decriminalisation, on the other hand, is used when the penalties of a criminal act are removed or are no longer in effect. The decriminalised act is, however, subject to minor penalties or fines. There are more differences between the two legal terms.

Differences Between Legalisation and Decriminalisation in a Tabular Form

Table: Legalisation vs. Decriminalisation
Parameters of Comparison
Legalisation
         
Decriminalisation
Definition
Legalisation is the act of allowing something by law.
Decriminalisation is the act of removing or reducing the criminal classification of something by law.
Origin
“Legalise”, the verb form of the word “legal” saw its origin in 1716. “Legal” is derived from the Old French word, “légal”, which means “about the law”.
“Decriminalise” was first used in 1963 to mean, “to reform a criminal”. Isolated mentions of the word have been since 1867.
 
Penalties
When an illegal act is legalised, the penalties and punishments for the act are no longer in effect.
When an act is decriminalised, the criminal penalties for the act are no longer in effect.
Inclusions
Legalisation causes an act to become acceptable to all.
Decriminalisation includes referral to a treatment or education program or a fine.
Changes
Legalisation removes all penalties of a criminal act.
A decriminalised act can be legalised in the future.
Examples
An example of legalisation is as follows: Say prostitution is legalised. It would mean that those seeking out prostitutes do not have to hide when they accept their services. It would be as legal as purchasing candy at a local store.
An example of decriminalisation is as follows: Say prostitution is decriminalised. It would mean that individuals indulging in the act would be liable for a fine or require a special permit instead of serving time in jail.
Purpose
Legalisation only serves the purpose to remove all punishments concerning the act.
Decriminalisation serves the purpose to foster in the public a sense of acceptance concerning the ideas of the act.

What is Legalisation?

There is often confusion when using the terms legalisation and decriminalisation. It is because people do not realize that there is a difference between the terms - “illegal” and “criminal”. Adding the prefix de- does not make the act “legal”. In law, the term “illegal” would mean that the act committed is punishable, prohibited and an offence. “Criminal”, meanwhile, means the act has relations to crime or administration of penal justice. Thus, understanding these terms separately helps differentiate them from each other better.

Legalisation is a process that involves the following three dimensions. The first - obligation - is that the state or subjects are bound by a set of rules that must be followed. The second - precision - is that the rules clearly define the required conduct. The last - delegation - is that the third parties are given the authority to implement and apply the rules to solve disputes. As a process, legalization makes a particular action legal. All the penalties and punishments of the previously illegal act are removed i.e. if a person is caught committing or performing the act, they will not be liable for any punishments, fines or jail time.

For example, if we take a legalised drug, there will be no punishment for its possession, production or consumption. There are regulations set for the legal use of the drug – how it is manufactured, sold and used. If there is a discrepancy in any of those processes – manufacture, sale and use – outside of the set regulations, there might be civil or criminal penalties applicable.

The legalisation of certain substances can have a positive impact on the economy. For example, in the United States, the legalisation of marijuana for recreational use and medicinal use has seen an increase in tax revenues. As of May 2022, eighteen states allow personal use and thirty-seven states permit the medical usage of marijuana. Incomes, jobs and even investment opportunities have seen a rise since the legalisation of the drug.

However, lawmakers must take all aspects into careful consideration when it comes to deciding what acts to legalise. The legalisation of acts or substances can have significant impacts on the public. For example, in Australia, alcohol is a legal drug. While there are quality controls placed on its production and minimum age laws to restrict the sale to underage youngsters, the drug has a detrimental effect on the health of Australians. Numerous individuals in the country are affected by alcohol-attributable diseases and injuries.

What is Decriminalisation?

Decriminalisation is when the criminal penalties of an act are no longer applicable. Criminal charges are the charges made by the government such that if found committing the act, the person would be liable for conviction and could be punished with jail time. The person will also have a criminal record. Possessing a criminal record is a source of shame and ridicule. It might ruin relationships and prospects for the individual. For example, while seeking employment, employers might reject the application if there is a criminal record. The stigma associated with a criminal record could lead to mental anguish.

Decriminalisation may be the answer to those woes. Decriminalisation may replace criminal penalties with civil penalties. The civil penalties could include visiting a treatment home, an educational reform or a fine. Civil cases do not need to be tried in court and can be dealt with by tribunals (quasi-judicial institutions or minor courts). Tribunals also keep a record, but these are not criminal records and do not affect any housing, employment or travel opportunities.

To understand decriminalisation better, consider the following example. If a drug is decriminalised, the person possessing the drug is not criminalized for personal use or possession. However, it is still illegal to use the drug and thus, selling and manufacturing the drug will carry criminal penalties. They are simply no longer criminal charges.

The rationale behind decriminalisation is that conflicting ideas about drugs or prostitution etc. are seen as health and a social issue rather than moral or criminal issues. It would improve the social and health outcome of the public. Decriminalisation can come into effect when society deems an act does not have any negative side effects or is so insignificant the justice system need not bother with it. Thus, it should not be considered criminal.

Decriminalisation reduces the stigma attached to the act and can enable the person facing problems with it to seek treatment promptly without judgment. The person would also avoid detrimental social outcomes like loss of employment or housing from the stigma attached to a criminal record.

Decriminalisation has also been found to reduce the burden on the legal system as the number of cases in the court system has lessened. It saves the time the lawyers and the police spend on the matter and the costs of imprisonment.

Main Differences Between Legalisation and Decriminalisation In Points

Following are the main differences between legalisation and decriminalisation:

  • Legalisation is a legal term used to define the removal of punishments and penalties of an act by law. Decriminalisation, on the other hand, is the reduction or removal of the criminal status of an act by law.
  • “Legalise" derived from the Old French word, “legal”, which means “of the law”, was used much earlier in 1716, while mentions of the word “decriminalisation” were found in 1867.
  • The legalisation of an act ensures there are no punishments for the person who is found to be committing the act, whereas decriminalisation of an act can have a reduced punishment or penalty for that person.
  • Legalisation makes certain that the act is accepted by all, whereas decriminalisation includes reforms such as education and training or payment of fines.
  • The legalisation of an act already means there are no consequences for committing the act i.e., there is no further action necessary. A decriminalised act, however, can further be legalised to avoid punishments.
  • An example of legalisation is as follows: Say alcohol is a legal drug, it would mean that those in possession of liquor will not face punishments for possession or consumption. But say if alcohol possession was decriminalised, a person found with alcohol would be liable to pay a fine or would have to obtain a special permit for possession or consumption.
  • Legalisation makes it possible for previously illegal acts to take place without consequences, whereas decriminalisation serves the purpose to induce acceptance in the people concerning the decriminalised act.
  • Legalisation has seen economic growth as a benefit, while decriminalisation has seen a change in social acceptance.

Conclusion

Therefore, it can be seen that the terms legalisation and decriminalisation can have effects not only in the legal community but also in our regular daily lives. Legalisation is the process of removing all punishments for a previously illegal act. This means, that any person found committing the act will not face any penalty or jail time. It ensures that the act is accepted by all with no repercussions. While legalisation has seen the benefits of an economic boost with a rise in jobs and investment opportunities, lawmakers must be wary of the implications it could have on the health of society.

Decriminalisation is the term used when the punishment for an act is minimized. It means that the criminal penalties of the act are no longer in effect. However, the act is still illegal; the person committing the act is liable for civil punishment. Civil penalties could include reforms such as training or education or a fine. A decriminalised act can be legalised and the penalty for the act can be removed. The rationale behind decriminalisation is to reduce stigma and improve social acceptance regarding the idea behind the decriminalized act.

Some of the acts that see severe scrutiny are those related to abortion, prostitution, homosexuality, euthanasia etc. the political and social views on these concepts vary from country to country. For example, in Germany and the Netherlands, prostitution is legal. It is, however, illegal in the Philippines and most Muslim countries. Some countries have separated the two acts of prostitution – buying and selling. The person seeking the service is considered as one committing a criminal act, while the prostitute is innocent. As can be seen, the complexities behind the terms and their ideologies are vast and need a thorough examination. Even your law friends must have found it hard wrapping their heads around these ideas. But, just because these matters are intricate does not give them the right to that superior smirk. It is time we buck up and delve into these matters as well. Not only to show them that we are also capable of in-depth understanding of legal terms but also to understand our society better; the implications of the laws and acts on the health (physical and mental) of the community. Also, let us not forget our legal dramas. Our TV time will be smoother.

References

  • https://dictionary.cambridge.org/dictionary/english/legalisation
  • https://www.merriam-webster.com/dictionary/decriminalise
  • https://indiankanoon.org/doc/704346/
  • https://legal-dictionary.thefreedictionary.com/criminal
  • https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-institutions/tribunals-1
  • https://adf.org.au/talking-about-drugs/law/decriminalisation/overview-decriminalisation-legalisation/
  • https://www.investopedia.com/articles/insights/110916/economic-benefits-legalizing-weed.asp
  • https://www.princeton.edu/~amoravcs/library/concept.pdf

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Law


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