Polygamy and the Predicament of Contemporary Criminal Law

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

26 Pages Posted: 11 Jun 2012 Last revised: 29 Oct 2012

Benjamin L. Berger

York University - Osgoode Hall Law School

Date Written: June 10, 2012

Abstract

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.

Suggested Citation

Berger, Benjamin L., Polygamy and the Predicament of Contemporary Criminal Law (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. Available at SSRN: https://ssrn.com/abstract=2081142

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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