Criminal Law and the Constitution of Civil Order
23 Pages Posted: 27 Nov 2018
Date Written: October 15, 2018
Those who advocate a “public law” conception of criminal law sometimes also argue that this precludes any type of “legal moralism”. This paper aims to show that while criminal law is indeed a species of public law, its distinctive role, as a species of public law, is precisely to take formal note of, and provide an appropriate response to, certain kinds of moral wrong — those kinds of wrong that properly count as public; we should therefore espouse a “public legal moralism”. To that end, I begin in s. 2 by looking more closely at the contrast between the moralist view that Michael Moore exemplifies, and a “public law” conception; central to this contrast are their contrasting views of the criminal law’s ambit and jurisdiction. S. 3 turns to recent versions of the “public law” conception, in particular those developed by Malcolm Thorburn and Vincent Chiao, and connects such accounts to the classical idea that criminal law serves to sustain “civil peace” or “civil order”. The idea of civil order is further explained in s. 4, and the conception of criminal law to be connected to civil order is explained in s. 5; in s. 6 I argue that a public law conception of criminal law as sustaining civil order includes a refined version of legal moralism: for criminal law as thus understood is properly concerned with certain kinds of wrongdoing. In s. 7, I will show how the relationships between those kinds of wrongdoing and civil order, and between the criminal law and civil order, can be internal rather than contingent: wrongs, that is, can be constitutively rather than contingently violative of civil order, and the criminal law partly constitutes the civil order that it serves to sustain. Finally, s. 8 takes brief note of three objections to this account.
Keywords: Criminal law, public law, legal moralism, civil order
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