Contemporary legal scholarship on criminalization focuses on evaluating the legitimacy of legislative decisions according to abstract standards of justice. In recent years, socio-legally oriented scholarship has attempted to do away with this focus by linking the theory of criminalization to the study of the real trends of criminal law enforcement. The article offers a critique of both approaches in what refers to the traditional area of application of the theory of criminalization, namely symbolic criminalization. It argues that whereas traditional papers discuss the legitimacy of the “enforcement of morality” through the criminal law, symbolic criminalization conflicts actually originate in disputes about meaning in plural societies. The real question that this phenomenon poses is thus not whether the enforcement of neutral morality is legitimate, but rather whether meaning framing through criminalization is.
Framing Meaning through Criminalization: A Test for the Theory of Criminalization
Javier Wilenmann is Associate Professor of Law at the Universidad Adolfo Ibáñez. He received his doctorate in criminal law in the Albert-Ludwigs Universität Freiburg in Germany. His major research interests focus on criminal law doctrine and on the institutional and constitutional setting of criminal justice. Address: Diagonal Las Torres 2640, Office 217, Building B, Peñalolén, Santiago, Chile. E-mail: firstname.lastname@example.org.
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Javier Wilenmann; Framing Meaning through Criminalization: A Test for the Theory of Criminalization. New Criminal Law Review 1 February 2019; 22 (1): 3–33. doi: https://doi.org/10.1525/nclr.2019.22.1.3
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