Rafique and others argue that homosexuality became criminalized only under European colonialism.
Opponents said that the measure should have banned somatic cell nuclear transfer; it criminalized only the "implantation" of an embryo into a woman to create a human clone.
Can we sustain the general claim that conduct should, in principle, be criminalized only if and because it wrongs or harms 'the public' in this sense?
Thus an instrumentalist approach to the justification of criminal law seems to leave it as something of an open question whether the law should criminalize only immoral conduct, or should subject only morally culpable agents to criminal liability.
The same appeals court previously threw out Mr. Bruno's December 2009 conviction on honest services mail fraud charges after the United States Supreme Court ruled in a separate case that the statute criminalizes only bribery and kickback schemes, not mere failures to disclose conflicts of interest.
The lower federal courts are split over whether "conceal" should be understood in the literal sense as simply being hidden, or whether Congress meant to criminalize only the hiding or disguising of cash with the intent to create the false appearance that it was obtained legitimately.
Whenever in the past Congress has considered making it a felony to leak classified information, it has always stepped back from this sort of broad-gauge approach, choosing instead to criminalize only leaks of specific and narrowly defined data -- like the capabilities of technology designed to intercept communications -- where there was identifiable damage to national security.
(2) Abolition involves criminalizing only the purchase of sexual services, along with related activities such as curb ("kerb") crawling and operating a brothel.
A pure instrumentalist will of course argue that this is a pragmatic issue: supposing that we do have good reason to criminalize only conduct that is in some way immoral, we decide which kinds of immorality to criminalize, and which to deal with in other ways (or to ignore) by asking which techniques are likely to constitute efficient means to our preferred ends.
Others, however, ground this limit in a non-instrumental side-constraint on the aim of harm-prevention: a purely instrumentalist theory cannot justify criminalizing only culpable conduct; we must instead appeal to a non-instrumentalist demand of justice, that those who lack fault should not be liable to criminal punishment (see Hart 1968: 17 24, 28 53).
Robert Wintemute, a professor of human rights law at King's College London, noted that the European Court of Human Rights, decided in 1981 that sexual activity between men could not be criminalized — but only after a majority of its members had already decriminalized it.
