Unconstitutional Criminalization

New Criminal Law Review, 2016, Forthcoming

35 Pages Posted: 12 May 2015 Last revised: 28 May 2015

See all articles by Hadar Dancig-Rosenberg

Hadar Dancig-Rosenberg

Bar-Ilan University

Ariel L. Bendor

Bar-Ilan University - Faculty of Law

Date Written: March 25, 2015


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.

Keywords: constituitional rights, criminalization

Suggested Citation

Dancig-Rosenberg, Hadar and Bendor, Ariel L., Unconstitutional Criminalization (March 25, 2015). New Criminal Law Review, 2016, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2605325 or http://dx.doi.org/10.2139/ssrn.2605325

Hadar Dancig-Rosenberg (Contact Author)

Bar-Ilan University ( email )

Faculty of Law
Ramat Gan, 52900

Ariel L. Bendor

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900

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