Legal Moralism and Public Wrongs

Abstract

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.