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Criminal law and the constitution of civil order
- University of Toronto Law Journal
- University of Toronto Press
- Volume 70, Supplement 1, 2020
- pp. 4-26
- Article
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Abstract:
Some of those who theorize criminal law in essentially political terms, as a species of ‘public law,’ argue that we should therefore reject legal moralism. I argue that they are right to reject the kind of legal moralism espoused by theorists such as Michael Moore (partly because such moralists cannot give a plausible account of the ambit and jurisdiction of domestic criminal law), but that we can construct a plausible version of legal moralism within the framework of a public law conception. This is a ‘political,’ or ‘public,’ legal moralism, according to which criminal law is properly concerned with public wrongs that violate the polity’s civil order. I explain these ideas of civil order and public wrongs, and the way in which criminal law can both help to constitute, and to sustain, a particular kind of civil order.