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Why Criminalize?New Legal Moralism: Some Strengths and Challenges

Why Criminalize?: New Legal Moralism: Some Strengths and Challenges [The first part of this chapter is devoted to a critical examination of some of the leading specifications that have been presented in writings designed to tell us what legal moralism is. Unfortunately, these definitions have not always been carefully distinguished. I end this part of the chapter by identifying a specification that seems to capture the essence of what many philosophers are referring to when they talk about legal moralism—one which, as presented, I hope, affords greater clarity. In the second part of the chapter I turn to critical assessment of the plausibility of legal moralism, with an emphasis on some leading and recent presentations of the view. First, I defend the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes, Michael Moore and Antony Duff are more plausible than Lord Devlin’s traditional, well-discussed account. The main argument for this thesis is that, in its more modern versions, legal moralism is immune to some of the powerful challenges to Devlin made by Hart, Dworkin and Feinberg, among others. As an example of this, it is shown that, while it follows from Devlin’s position that the state should enforce the shared morality of a society no matter how evil that morality is, the new generations of legal moralists (apart from Duff) are invulnerable to this kind of ‘moral relativism’ criticism. Second, however, I also challenge the new generation of legal moralists. I argue, for example, that some of the new generation views are susceptible to the no difference objection, according to which there is no difference between their versions of legal moralism and the harm principle. Additionally, and alternatively, I make a case for saying that the legal moralists under discussion (with the exception of Kekes) need to overcome what I call the criminological levelling-down challenge (CLDC) and the weighing challenge (WEC).] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Why Criminalize?New Legal Moralism: Some Strengths and Challenges

Part of the Law and Philosophy Library Book Series (volume 134)
Søbirk Petersen, Thomas
Why Criminalize? — Nov 29, 2019
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Publisher
Springer International Publishing
Copyright
© Springer Nature Switzerland AG 2020
ISBN
978-3-030-34689-8
Pages
57 –92
DOI
10.1007/978-3-030-34690-4_4
Publisher site
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Abstract

[The first part of this chapter is devoted to a critical examination of some of the leading specifications that have been presented in writings designed to tell us what legal moralism is. Unfortunately, these definitions have not always been carefully distinguished. I end this part of the chapter by identifying a specification that seems to capture the essence of what many philosophers are referring to when they talk about legal moralism—one which, as presented, I hope, affords greater clarity. In the second part of the chapter I turn to critical assessment of the plausibility of legal moralism, with an emphasis on some leading and recent presentations of the view. First, I defend the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes, Michael Moore and Antony Duff are more plausible than Lord Devlin’s traditional, well-discussed account. The main argument for this thesis is that, in its more modern versions, legal moralism is immune to some of the powerful challenges to Devlin made by Hart, Dworkin and Feinberg, among others. As an example of this, it is shown that, while it follows from Devlin’s position that the state should enforce the shared morality of a society no matter how evil that morality is, the new generations of legal moralists (apart from Duff) are invulnerable to this kind of ‘moral relativism’ criticism. Second, however, I also challenge the new generation of legal moralists. I argue, for example, that some of the new generation views are susceptible to the no difference objection, according to which there is no difference between their versions of legal moralism and the harm principle. Additionally, and alternatively, I make a case for saying that the legal moralists under discussion (with the exception of Kekes) need to overcome what I call the criminological levelling-down challenge (CLDC) and the weighing challenge (WEC).]

Published: Nov 29, 2019

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