Moral Uncertainty and the Criminal Law

Abstract

In this chapter we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we might decide whether or not to criminalize some conduct when we are unsure as to whether or not the conduct is morally permitted and whether or not it is permissible to criminalize the conduct. We also look at how we might make sentencing decisions under moral uncertainty. We argue that Moral Uncertainty Theory can be an illuminating way to address these questions but find that doing so is a lot more complicated than applying Moral Uncertainty Theory to individual conduct.