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Legal Moralism Revisited, Michael S. Moore
Legal Moralism Revisited, Michael S. Moore
San Diego Law Review
I shall use this occasion mostly to clarify what the legal moralist theory of criminal legislation proclaims to be the proper limits on the reach of criminalization of behavior. But preliminarily, here in this Introduction, I want to remind readers of how the principle is motivated. First, recall what a principle of criminal legislation is. It consists of two closely related items. First of all, it is a principle that sets forth the proper aims of a legislature when that legislature drafts the prohibitions and requirements that constitute the “special part” of the substantive criminal law. It is, second, a …
The Harm Principle, Legal Moralism, And The "Disintegration Thesis": On Lord Devlin Being Unable To Keep Playing The Smuggling Game, Miguel Nogueira De Brito
The Harm Principle, Legal Moralism, And The "Disintegration Thesis": On Lord Devlin Being Unable To Keep Playing The Smuggling Game, Miguel Nogueira De Brito
San Diego Law Review
The topic of the legal enforcement of morals, understood as the “question of the legitimacy of ‘vice crimes’ or ‘victimless crimes,’” is a special facet of the more general issue of the limits of the law. It is the subject of the long-standing debate as to whether law—all law—can be used as a support for moral conceptions as such, or, more generally, whether there are limits on the use of law to enforce morality, as when it is claimed that the law must remain neutral as between different views of the good, be they religious or otherwise. Whether understood in …
What's Legal About Legal Moralism?, Douglas Husak
What's Legal About Legal Moralism?, Douglas Husak
San Diego Law Review
If legal moralism posits a normative connection between culpable wrongdoing and punishment, what should legal moralists say about cases in which responsible agents commit culpable wrongs that have not been proscribed ex ante by the state in which they occur? More succinctly, what is the status of the principle of legality according to legal moralists? I argue that the absence of law typically, but perhaps not always, provides a sufficient non-desert basis to withhold punishment from culpable wrongdoers whose punishment is deserved. I critically examine the probable implications of this way of accounting for the significance of legality.