Reasons For and Against Criminalization: Discussion of the Realm of Criminal Law
Jerusalem Review of Legal Studies, Vol. 18, pp. 16-37, 2018
27 Pages Posted: 19 Mar 2019
Date Written: May 16, 2018
Antony Duff claims that a political community has a reason to criminalize all and only actions that are both morally wrong and “public”, namely, violate the values of relevant community. In what follows, I consider several arguments against Duff’s claims. My general objection is that, in the relevant context, all of the elements that Duff considers as morally significant in themselves – the moral status of actions (as wrong or permissible), their “public” (or “non-public”) nature and the (criminal) law itself – are morally significant only if and when they are derived from more basic factors (that are morally significant in themselves). For illustration, I assume in what follows, with respect to the most basic factors, that there are foundational reasons to promote well-being and distributive or retributive justice, for example, that there is a reason to prevent the suffering of a virtuous person (who does not deserve to suffer in this way).
Keywords: Criminal Law; Wrongs
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