Should Law Improve Morality?

Criminal Law and Philosophy, Forthcoming

Oxford Legal Studies Research Paper No. 73/2013

38 Pages Posted: 18 Jul 2013  

Leslie Green

University of Oxford - Faculty of Law; Queen's University - Faculty of Law

Date Written: July 16, 2013

Abstract

Legal theorists have long debated whether law should enforce social morality. This paper explores a different problem: should law (try to) improve social morality? I argue that it should. First, against conceptual and empirical doubts, I argue that it is possible for law to improve morality. Second, against certain moral objections, I argue that it is often proper for law to try to improve it. Third, I offer an example: law should try to improve our social morality of sex, by trying to re-shape what we regard as valid consent to sexual activity. Along the way, the ideas of H. L. A. Hart and Patrick Devlin are examined, as are the empirical and policy claims of Paul Robinson and his collaborators. A revised version of the paper is to appear in Criminal Law and Philosophy.

Keywords: jurisprudence, philosophy of law, criminal law, criminalization, social morality, positive morality, sexuality, rape, consent, H.L.A. Hart, Patrick Devlin, Paul Robinson

Suggested Citation

Green, Leslie, Should Law Improve Morality? (July 16, 2013). Criminal Law and Philosophy, Forthcoming; Oxford Legal Studies Research Paper No. 73/2013. Available at SSRN: https://ssrn.com/abstract=2294678 or http://dx.doi.org/10.2139/ssrn.2294678

Leslie Green (Contact Author)

University of Oxford - Faculty of Law ( email )

Balliol College
Oxford
Oxford, UK, OX1 3BJ
United Kingdom

Queen's University - Faculty of Law ( email )

Kingston, Canada, Ontario K7L3N6
Canada

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