May criminalization constitute a violation of a constitutional right? This question has rarely been discussed directly in the legal literature. This Article offers a novel and fully developed normative framework for courts to review the constitutionality of substantive criminal law. It suggests a distinction between extra- and intra-constitutional approaches, offers a critique of existing approaches, and proposes a new intra-constitutional approach to the distinction between criminal offenses that may constitute an infringement upon constitutional rights and those that do not. The Article suggests that a constitutional right against criminalization may apply (and only apply) to activities that have substantive positive social value and do not impose any substantive social harm. The Article recommends some criteria for applying this framework.
Ariel L. Bendor is Frank Church Professor of Legal Research at the Faculty of Law, Bar-Ilan University. His major research interests center on constitutional and administrative law and the interface between them and other fields of law.
Hadar Dancig-Rosenberg is an Assistant Professor at the Faculty of Law, Bar-Ilan University. She received her Ph.D. from Bar-Ilan University (with highest distinction) focusing on theory of complicity law. Her fields of interest include criminal law and procedure, non-adversarial criminal justice, and the interface between criminal and constitutional law.
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Ariel L. Bendor, Hadar Dancig-Rosenberg; Unconstitutional Criminalization. New Criminal Law Review 1 May 2016; 19 (2): 171–207. doi: https://doi.org/10.1525/nclr.2016.19.2.171
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