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Philosophical Foundations of Criminal Law$
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R.A. Duff and Stuart Green

Print publication date: 2011

Print ISBN-13: 9780199559152

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199559152.001.0001

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Criminal Law as Public Law

Criminal Law as Public Law

(p.21) 2 Criminal Law as Public Law
Philosophical Foundations of Criminal Law

Malcolm Thorburn

Oxford University Press

This chapter argues that criminal law scholars have tended to draw too close an analogy between the system of criminal law and that of private morality. In place of such a ‘legal moralist’ account, this chapter offers a ‘public law’ account of the criminal justice system, which conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate. Like the new legal moralism of Duff and Gardner, this account is an attempt to justify the workings of the criminal justice system by demonstrating that they are just what is required for us to be true to a set of roles and relationships that have intrinsic value. But the relevant roles and relationships for criminal justice are not those we understand from ordinary morality. Rather, they are the legally defined roles — such as private citizen, police officer, judge, etc. — that we take up within a larger constitutional order that, we could not abolish without abandoning necessary preconditions for our moral life.

Keywords:   criminal law, private morality, public law account, criminal justice system, legal moralism

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