Towards a Modest Legal Moralism

Duff, R.
January 2014
Criminal Law & Philosophy;Jan2014, Vol. 8 Issue 1, p217
Academic Journal
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.


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