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Limited Legal Moralism

NCJ Number
115261
Journal
Criminal Justice Ethics Volume: 7 Issue: 2 Dated: (Summer-Fall 1988) Pages: 23-36
Author(s)
R F Galvin
Date Published
1988
Length
14 pages
Annotation
This paper addresses the legitimate scope of criminal law, specifically with respect to legal moralism, which holds that the immorality of a class of action is a good reason for criminalizing that class of action.
Abstract
Classical legal moralist positions typically include not only arguments for the legitimacy of criminalization of immoral behavior, but an ideal set of rules and values which the law is to enforce. Other legal moralists argue that the State should enforce a moral consensus within its own community. Patrick Devlin and Ronald Dworkin defend this species of moralism on the ground that this position is required by democratic principles. Devlin argues that no satisfactory set of rational standards for the analysis and evaluation of moral judgments has ever been produced, and that none seems forthcoming. Dworkin claims to have produced a set of rational standards for determining when a judgment is a moral judgment, but not for determining the judgement's correctness. A limited legal moralism is proposed that posits that a class of conduct is immoral only if it is identified as immoral and ought not be engaged in according to any reasonable moral code. This class of conduct ought to be discouraged under such conditions, but should be criminalized only if it is a serious enough wrong to justify permission to prevent others from doing it according to any reasonable moral code. Such an approach requires that moral positions be rationally defensible and that analogs of methodological models appropriate to nonmoral contexts can provide a bridge between what various moral positions stipulate and what behavior can be justifiably criminalized. 51 notes.

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