Is criminal law “special”? A defense of a stricter scrutiny of judicial review of legislation in criminal matters.

The question of the legitimacy in a democratic society of the judicial review of legislation has been widely discussed in the constitutional law theory. Is this question to answer differently in the criminal law context? Is, in other words, criminal law special? And in what terms? The paper will try to defend the thesis that criminal law is indeed special and calls for a stricter scrutiny of legislation. The fundamental rights in this context tend to find no representation in the political arena and have then much more difficulties to find their way through democratic representation. It is then understandable that, especially in this context, constitutions are much more detailed than in other areas of law and constitutional courts adopt a stricter scrutiny.