NCJ Number
117171
Journal
Law and Contemporary Problems Volume: 51 Issue: 1 Dated: (Winter 1988) Pages: 123-150
Date Published
1988
Length
28 pages
Annotation
The legitimacy of criminal law rests on a conception of public morality that society regards as justly enforceable.
Abstract
The classic liberal answer to what constitutes an enforceable public morality was advanced by John Stuart Mill in terms of his harm principle. According to this principle, subject to duties of justice and fair contribution, the coercive power of the State can only be imposed for harms to other persons, not to harms to the self. However, the utilitarian doctrine with which Mill justified this principle is inconsistent with the stringent demands the principle imposes on the scope of the criminal law. Consequently, an alternative political theory is needed to explain how and why the harm principle intuitively identifies the constraints that liberalism imposes on the conception of enforceable public morality. Constitutional liberalism was a product of the Founders' rejection of the theories of virtue and vice of the classical republican tradition, a rejection that is rooted in Lockean liberalism. An analysis of the right of privacy shows it to be the principled interpretive elaboration of a long-standing skepticism about State enforcement of conceptions of perfectionist public morality -- a skepticism that framed the Founders' general approach to the Constitution. Because liberal constitutionalism guarantees full autonomy, persons are free to generate and pursue a moral framework that is pointedly apolitical, not primarily political, or sharply critical of dominant moral conceptions embodied in criminal law. Such self-governing moral independence is essential to protect against sectarian moral dicta. 154 footnotes.