On criminalization (again)

As regular readers will know, one of my main interests is criminalization: how is it that certain conduct or individuals become defined as criminal, and given that this involves the exercise of state power, what makes this exercise of power justified or legitimate?

Given that these questions have a certain currency and meaning in contemporary writings on the topic, it was interesting to go to the Oxford English Dictionary to see how the term is defined historically.

The dictionary gives two main meanings for the verb to criminalize. The first is

"to turn a person into a criminal, esp by making his or her activities criminal".

This draws a direct analogy with the French term 'criminaliser', meaning to accuse, and most of the early usages listed relate to the accusing of particular individuals with having committed crimes. It is not until the middle of the nineteenth century, that it takes on a more modern (and perhaps sociological) sense of defining individuals or groups as criminal or deviant in some way (Thus from the Law Magazine in 1854: "Young offenders had better be reformed than criminalized.")

The second meaning is that which is more familiar from philosophical writings on the topic and is

"to turn (an activity) into a criminal offence by making it illegal."

What is surprising to me about this second usage is that it appears to be relatively recent in origin. The first recorded usage in this sense listed dates only from 1832 and is (not surprisingly) from Jeremy Bentham, who was an enthusiastic inventor of neologisms. What is surprising, is that in using the term he is not referring to a legislative process, or at least not directly ("Asceticism has sought to brand and criminalize the desires to which nature has confided the perpetuity of the species"). It is not until the end of the century that it is listed as being used to refer to a legislative process more directly (from the Columbia Law Review in 1906: "it may confiscate the goods ... or criminalize the selling of them.")

What conclusions can be drawn from this? The first is that to understand criminalization in the second, legislative, sense does not seem to pre-date the existence of a modern parliament which is actively legislating to make certain activities or conduct criminal. To be sure conduct was criminalized prior to this, but the legislative sense implies some sort of choice about how or why this is done. Second, and more tentatively, it seems to me that it implies the prior existence of an idea of the criminal law as a distinct body of rules, and the bringing of a certain activity within the scope of what it means to be criminal. In this sense the activity is the object to which the criminal law is applied (as subject). Being criminal in the modern sense is thus not, and cannot be, a quality of the conduct or activity itself. And the meaning of any particular act of criminalization depends on our understanding of what the criminal law is and does.