It is often maintained that the criminal law is supposed to intervene only when a certain social norm has become so significant within a given society to justify its protection by means of penal sanctions. The criminal law is thus thought to mirror a hierarchy of values it neither shapes nor contributes to building; rather, it is required to stand at least one step behind social change. This article challenges this view, presenting a normative account that contributes to the debate on what is permissible for the criminal law to try to achieve. It does so by defining and theoretically substantiating the “transformational function” of the criminal law. The term refers to the use of criminalization and punishment to change, rather than merely reflect, social norms, attitudes, and beliefs alongside, and combined with, non-penal policy-making tools in contested domains. Four operational conditions of legitimacy are identified and discussed. Within such operational boundaries, this article contends that the criminal law can play an important role in promoting social change—i.e., the establishment of new norms and values—as well as helping the coagulation of norms, attitudes, and beliefs not yet fully entrenched within the societal body.

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.

This paper examines the criminalization of HIV non-disclosure in Canada as a public health legal response. The analysis begins outside the public health framework to relate the criminalization of HIV to broader shifts in the relationship between life and law in contemporary forms of governance. It does this by drawing on the concepts of biopower and biopolitics to explain how the intersection of medical and legal knowledge creates an accusatorial framework that has made HIV criminalization possible. This idea is explored by tracing the historical development of the legal principle out of which the phenomenon has emerged (“fraud capable of vitiating consent to sexual relations”) and looking at how it has been applied in two contemporary HIV prosecution cases: R v. Aziga (2007) and R v. Ngeruka (2015). The second half of the paper examines the effectiveness of the criminal accusation of HIV non-disclosure as a public health legal response, focusing on its effect on advancing traditional public health goals. The discussion also points out how criminalization of HIV non-disclosure manifests broader tensions that have been recognized in public health legal responses to communicable disease, particularly the challenges of protecting the public while respecting individual rights. The paper concludes by arguing that control over blood blurs medical and legal forms of knowledge and power. This reflects a “seropolitical” landscape characterized by a criminal law accusatorial framework shaped by medical determinations of risk and harm.

The 19th century proved to be an important moment for a discursive capture through which—as Foucault (1995) has famously described—diverse disciplinary powers expanded omnisciently to form modern, “carceral” societies. Included here was a regulatory focus on crime, capturing (identifying) criminals, and correcting them. The following paper examines specifically how Patrick Colquhoun approached such regulation by emphasizing “immoral habits” as a cause of crime that could be regulated, in concert, by civil society and criminal law. He called for the development of effective discipline-based policing to capture and control criminals in civil society, and to enable their subsequent arrogation by criminal law. Alongside Bentham’s panoptic surveillance, Colquhoun’s views on criminal habits called for expanding disciplined criminalization that tied social and legal governance. Two aspects of Colquhoun’s influential ideas are highlighted; namely, the social formation of immoral habits as the cause of crime, and the need for “energetic” systems of policing to embrace habits of criminalization. Together, these approaches to habit fostered massive, costly, and unequal criminal justice institutions that today form tenacious, marginalizing, and unequal relations of captivity. The scope of such enduring captivities might be curtailed by recalling their contingent emergence through historically distant trends, and by questioning their costly collective effects.

This article analyzes the criminalization provisions of the International Convention for the Suppression of the Financing of Terrorism, the backbone of the legal regime for the prevention of terrorist financing. It makes a detailed examination of the background of the Convention and the nature of the negotiation discussions that led to its adoption. The drafters of the Convention were faced with two problems: first, how to define terrorism, terrorist acts, and terrorist groups, the financing of which should be addressed; second, the precise scope of the offense, in particular, how to define the preparatory acts of financing as an independent offense. This article argues that the definition of the offense provided by the Convention is far too ambiguous, and its application at national levels can often lead to an unjustifiable and unfair criminal law.

Since 2001, terrorism has become a frightening phenomenon, posing major threats to the stability, peace, and security of China. Although much research has been undertaken to understand China’s social and public policies of terrorism, little attention has been drawn toward the state’s legal response to this emerging threat. This article aims to explore a new legal framework against terrorism the Chinese government has adopted over the last decade or so. It examines the development, formation, and functionality of this mechanism within the context of the state’s new political agenda of maintaining social harmony and stability. By assessing the rhetorical and practical changes in China’s recent counterterrorism strategies, it concludes that China has begun to implement more punitive laws and punishments to combat terrorism in the post-2001 era than in the reform era (1980s–1990s). This increased level of punitiveness is pursued by countless legislative amendments to criminalize a new suite of terrorist offenses, the expansion of police powers to investigate terrorism and the intensification of punishment and sentencing on terrorist offenders.

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.

The criminal laws of many states make increasing use of preventive offenses—offenses that aim to prevent a given type of harm by targeting conduct prior to the causation of that harm. Academic commentators have largely been skeptical about such offenses. Their most potent criticism is that many preventive offenses do not target culpable wrongdoing of a kind that warrants censure and punishment through the criminal law. This article responds to this argument. Its principal contention is that some preventive offenses may be rationalized as targeting regulatory or malum prohibitum wrongs. Even if conduct does not yet cause or risk causing harm, it may warrant penalization as part of a regulatory scheme aimed at preventing that harm. This is shown to have significant implications for the legitimacy of some offenses targeted by the skeptics—in particular, offenses targeting the possession of weapons such as knives or firearms.

In this article, it is argued that an application of the harm principle to many forms of nontherapeutic cosmetic surgery shows that these procedures are a form of physical harm, not a form of medicine, and therefore ought to be criminalized. Not only does the harm principle support the case for criminalization, but so too do the relevant precedents. This article focuses on the general moral justifications (wrongful harm to others) for criminalizing unnecessary harmful cosmetic surgery, but legal doctrine is also invoked to demonstrate that there is a legal justification for criminalization. The famous English case of R. v. Brown will be discussed to outline the core legal case for criminalization. This article does not aim to provide a comparative study of the U.S. and English authorities, but rather aims to make theoretical arguments for criminalization, and thus, works from the legal premise that in most states the U.S. courts have taken a similar position to that taken in the seminal English House of Lords decision in R. v. Brown.

Given the current criminalization trend, the motivating question of this article is whether or not sexual transmission of HIV, without specific consent to the risk of such transmission, should be categorized as an assault or a sexual assault, and what difference that (re)categorization might make. In the argument that follows, the criminalization discourses in Canada and England and Wales that underpin and permeate the debates over HIV transmission will be explored. These jurisdictions have been chosen as examples of two regimes, at almost opposite ends of the criminalization spectrum, in which recent changes have set new benchmarks for criminal responsibility. One (England and Wales) has set rather narrow limits on the criminal law, whilst the other (Canada) has set far broader parameters, and lately has begun to include other sorts of cases (such as deception about the absence of birth control) as analogous to the HIV cases, drawing the boundaries of the criminal law even more widely. Beginning with a brief description of the law in each jurisdiction, this article analyzes the gendered and (hetero)normative role of consent in HIV nondisclosure offenses. Through a comparison with the law on sadomasochism, the article questions whether such offenses are rightly categorized as assaults or as sexual assaults. Following a critical engagement with the reasoning in recent Canadian jurisprudence in the area, the article will conclude by addressing the question of how future HIV transmission cases should be tackled. It is argued that in the absence of a policy that precludes criminalization of nondisclosure, the position in England and Wales is to be preferred.

This article critically assesses the criminal law on consensual harm through an examination of the legality of fighting sports. The article begins by considering fighting sports such as bare-fisted prize fighting (dominant in the nineteenth century). It then, in historical chronology, examines the legality of professional boxing with gloves (dominant in the twentieth century). Doctrinally, the article reviews why and how, in a position adopted by the leading common law jurisdictions, fighting sports benefit from an application of the “well-established” category-based exceptions to the usual bodily harm threshold of consent in the criminal law. Centrally, fighting sports and doctrinal law on offenses against the person are juxtaposed against the theoretical boundaries of consent in the criminal law to examine whether and where the limit of the “right to be hurt” might lie. In sum, this article uses fighting sports as a case study to assess whether the criminal law generally can or should accommodate the notion of a fair fight, sporting or otherwise, predicated on the consent of the participants to the point that the individuals involved might be said, pithily, to have extended an open invite to harm.

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.