Criminal law and the constitution of civil order

Citation

Duff RA (2020) Criminal law and the constitution of civil order. University of Toronto Law Journal, 70 (Supplement 1), pp. 4-26. https://doi.org/10.3138/utlj.2019-0077

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.

Keywords
civil order; criminal law; legal moralism; public law; public wrongs

Journal
University of Toronto Law Journal: Volume 70, Issue Supplement 1