Criminalisation in Historical and Theoretical Perspective (LAW474H1S)

The question of which conduct should be made subject to the criminal law has come to be recognised as one of the central questions in criminal law and legal theory, and lies at the heart of important current debates in Canadian constitutional law (see, e.g., Bedford v. Canada and Polygamy Reference). It raises legal and political questions of the proper scope of state power and of individual liberty; philosophical questions of the nature of particular wrongs and their place in shaping the law; the relationship between criminal law and other forms of regulation; and importantly of the proper function of the criminal law. This course will review and analyse contemporary debates around criminalisation. It will also seek to place these debates in historical perspective to shed new light on the philosophical and political questions that are seen to be central to these debates.

The course will begin by providing an introduction to theoretical debates about criminalisation. It will look at theories of the criminal law, at the harm principle and its modern interpreters, at the emergence of contemporary debates about criminalisation in the context of a concern with 'over-criminalisation', and at the possible role that principles might play in limiting the scope of the criminal law.

The course will then look at criminalisation of particular areas of criminal law. It is often argued that the aim of the criminal law is to protect particular rights, interests or goods - notably property, the person and sexual autonomy. The course will look at the range of interests or goods that have been protected by the modern criminal law under certain broad heads and will explore how the content or conceptualisation of these goods and the types of wrongs that can be committed against them have changed over time.