Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

THE PROPOSED LEGALIZATION OF PROSTITUTION IN SOUTH AFRICA – FRAMING THE DEBATE FROM A LIBERAL PERSPECTIVE

The debates surrounding the issue of whether or not prostitution or sex work ought to be legal or illegal have a long and convoluted history, both in South Africa and abroad. This article seeks to provide greater clarity and focus to current debates on this complex issue, in particular from a liberal perspective. By examining certain of the main issues at stake for those committed to the broad tenets of liberal ideology, the article hopes to bring at least some measure of clarity and focus to a contentious set of theoretical and empirical questions. It is argued that, from a liberal perspective, to interfere with the freedom of each South African to make his or her own moral choices is to interfere with the very foundation of South Africa’s hard-won constitutional democracy. In order to convince those committed to truly liberal principles of the need for the criminal law to prohibit sex work, it must be shown that it causes either “harm” or “offence” to others. Liberals will accept neither the principle of “legal moralism” nor that of “legal paternalism” as legitimate reasons to criminalize sex work.

Connecting Moral Status to Proper Legal Status

This chapter entertains three proposals as to the connection between an animal’s moral status and what legal status it ought to have. The first proposal is this strong claim: that an act wrongs an animal is a justification for criminalizing it. The second proposal is this moderate claim: that an act constitutes an injustice to an animal is a justification for criminalizing it. Both of these proposals can be vindicated if an argument for legal moralism that the author constructs, drawing on the work of Michael Moore, is sound. Meanwhile, Martha Nussbaum, Alasdair Cochrane, and Robert Garner have each argued for the second proposal. The chapter demonstrates that all four of these arguments are unsound. The third proposal is this claim: it is obligatory for legislators to eliminate any aspect of the law that facilitates the wronging of animals. This proposal, the author argues, is sound. Comparatively weak though this proposal is, the chapter extracts from it radical implications for animal ownership and state funding of medical research on animal subjects.

The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita

There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed.

Koncepcja moralności publicznej Lorda Patricka Devlina a orzecznictwo Europejskiego Trybunału Praw Człowieka

The aim of this article is to present the case law of the European Court of Human Rights (ECtHR), in cases concerning public morality, in the context of one of the most important debates in 20th century legal philosophy: the dispute between Patrick Devlin and Herbert L.A. Hart. In order to achieve this aim, I first describe the key theses defended by these scholars and explain the historical circumstances in which the debate arose. Then I analyse the most salient judgements passed by the ECtHR, which defined rules of the acceptable limitation of individual rights guaranteed by the European Human Rights Convention due to the moral norms existing in a society. I conclude that the reasoning adopted by the ECtHR in these cases resembles Devlin’s propositions to some extent. Furthermore, I claim that a reference to inherent and inalienable human dignity might be considered a sound solution in some doubtful cases in which moral problems or rights restrictions appear. Finally, I show that legal moralism, as a vein in the philosophy of law, has its adherents in contemporary science, too. However, the views presented by new legal moralists fundamentally differ from those postulated by Patrick Devlin in his time.

Sex, Work, and Criminalization

This chapter provides a philosophical examination of the various dimensions of commercial sex as a form of work. It then offers perspectives on the legitimate role of the criminal law in regulating commercial sex, based upon three limiting principles. The first is a principle of ‘minimalism’ such that the criminal law should only be used as a last resort. The second is a principle of ‘modest legal moralism’ such that the criminal law should be reserved as a legal response to public wrongs. Finally, the third principle is a ‘presumption of non-interference’ based in the liberal harm principle, so that state coercion is limited to situations of direct or indirect harm. Given these three limiting principles, the chapter asks if the criminal law has a legitimate role in regulating, restricting, or prohibiting sex work.