Towards a Modest Legal Moralism

After distinguishing different species of Legal Moralism (positive vs. negative; modest vs. ambitious) I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if (and only if) it constitutes a public wrong. Some of the centra...

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Bibliographic Details
Published in:Criminal law and philosophy 2014, Vol.8 (1), p.217-235
Main Author: Duff, R. A.
Format: Article
Language:English
Subjects:
Criminal law
Criminal Law and Criminal Procedure Law
Criminal procedure
Ethics
Law
Law and Criminology
Legal History
Morality
Original Paper
Philosophy of Law
Social interaction
Studies
Theories of Law
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Summary:After distinguishing different species of Legal Moralism (positive vs. negative; modest vs. ambitious) I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if (and only if) it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a (merely) moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization (of which legislation is only one), and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation.
ISSN:1871-9791
1871-9805
DOI:10.1007/s11572-012-9191-8