Constitutionalizing Criminal Law

Constitutionalizing Criminal Law calls for an overhaul of the way the Supreme Court has developed the relationship between criminal and constitutional law. The court has relied heavily on its power to constitutionalize principles of “fundamental justice” under section 7 of the Charter. In so doing, it employs both principles of criminal law theory and instrumental rationality. The court less frequently invokes enumerated Charter rights when striking down criminal laws. This book persuasively argues that the court should abandon the use of instrumental rationality and constitutionalize principles of criminal law theory only when an unjust criminal law cannot be struck down using an enumerated right.

Constitutionalizing Criminal Law calls for an overhaul of the way the Supreme Court has developed the relationship between criminal and constitutional law. The court has relied heavily on its power to constitutionalize principles of “fundamental justice” under section 7 of the Charter. In so doing, it employs both principles of criminal law theory and instrumental rationality. The court less frequently invokes enumerated Charter rights when striking down criminal laws. This book persuasively argues that the court should abandon the use of instrumental rationality and constitutionalize principles of criminal law theory only when an unjust criminal law cannot be struck down using an enumerated right.

This book explores the complicated relationship between constitutions and transitional justice. It brings together scholars and practitioners from different countries to analyze the indispensable role of constitutions and constitutional courts in the process of overcoming political injustice of the past. Issues raised in the book include the role of a new constitution for the successful practice of transitional justice after democratization, revolution or civil war, and the difficulties faced by the court while dealing with mass human rights infringements with limited legal tools. The work also examines whether constitutionalizing transitional justice is a better strategy for new democracies in response to political injustice from the past. It further addresses the complex issue of backslides of democracy and consequences of constitutionalizing transitional justice. The group of international authors address the interplay of the constitution/court and transitional justice in their native countries, along with theoretical underpinnings of the success or unfulfilled promises of transitional justice from a comparative perspective. The book will be a valuable resource for academics, researchers and policy-makers working in the areas of Transitional Justice, Comparative Constitutional Law, Human Rights Studies, International Criminal Law, Genocide Studies, Law and Politics, and Legal History.

In Bedford, the Supreme Court struck down prohibitions against communicating in public for the purpose of sex work, living on its avails, and working from a bawdy house. Its narrow constitutional reasoning nevertheless allowed Parliament to respond by adopting the "end demand" or "Nordic Model" of sex work regulation, an approach widely criticized for failing to ensure sex worker safety. Judging Sex Work takes stock of the Bedford decision, arguing that the constitutional issue was improperly framed. Because the most vulnerable sex workers have no realistic choice but to commit the impugned offences, they already possess a legal defence. The constitutionality of the sex work laws should therefore have been assessed by their application to those who choose sex work, an approach that militates in favour of upholding these laws based on current jurisprudence. While this approach leads to the former restrictions on sex work being constitutional, it also has the salutary effect of forcing litigants to consider a more pressing question: Can sex work be rationalized as a criminal matter at all?

The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The contributors then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order. A vital examination of one of the most important topics in modern criminal legal theory, this volume raises new questions central to the study of the criminal law and offers new suggestions for addressing them.

Are foreign investors the privileged citizens of a new constitutional order that guarantees rates of return on investment interests? Schneiderman explores the linkages between a new investment rules regime and state constitutions – between a constitution-like regime for the protection of foreign investment and the constitutional projects of national states. The investment rules regime, as in classical accounts of constitutionalism, considers democratically authorized state action as inherently suspect. Despite the myriad purposes served by constitutionalism, the investment rules regime aims solely to enforce limits, both inside and outside of national constitutional systems, beyond which citizen-driven politics will be disabled. Drawing on contemporary and historical case studies, the author argues that any transnational regime should encourage innovation, experimentation, and the capacity to imagine alternative futures for managing the relationship between politics and markets. These objectives have been best accomplished via democratic institutions operating at national, sub-national, and local levels.

Constitutionalization of world politics is emerging as an unintended consequence of international treaty making driven by the logic of democratic power. The analysis will appeal to scholars of International Relations and International Law interested in international cooperation, as well as institutional and constitutional theory and practice.