Polygamy and the Predicament of Contemporary Criminal Law
Benjamin L. Berger
York University - Osgoode Hall Law School
June 10, 2012
Gillian Calder and Lori Beaman, eds. Polygamy's Wrongs? The Social Family in the Culture of Rights, Forthcoming
Osgoode CLPE Research Paper No. 36/2012
This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a “strange bedfellows” puzzle – the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law.
Number of Pages in PDF File: 26Accepted Paper Series
Date posted: June 11, 2012 ; Last revised: October 29, 2012
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