Criminal Law and the Constitution of Civil Order
23 Pages Posted: 27 Nov 2018 Last revised: 15 Jun 2019
Date Written: October 15, 2018
Some who theorise criminal law in essentially political terms, as a species of ‘public law’, argue that we should therefore reject legal moralism. I argue that they are right to reject the kind of legal moralism espoused by theorists such as Michael Moore (partly because such moralists cannot give a plausible account of the ambit and jurisdiction of domestic criminal law), but that we can construct a plausible version of legal moralism within the framework of a public law conception. This is a ‘political’, or ‘public’ legal moralism, according to which criminal law is properly concerned with public wrongs that violate the polity’s civil order. I explain these ideas of civil order and public wrongs, and the way in which criminal law can both help to constitute, and to sustain, a particular kind of civil order; and I respond briefly to four objections to this account.
Keywords: Criminal law, public law, legal moralism, civil order
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