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Placing BlameA Theory of the Criminal Law$
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Michael S. Moore

Print publication date: 2010

Print ISBN-13: 9780199599493

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780199599493.001.0001

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Liberty’s Limits on Legislation

Liberty’s Limits on Legislation

Chapter:
(p.739) 18 Liberty’s Limits on Legislation
Source:
Placing Blame
Author(s):

Michael Moore (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199599493.003.0018

The last piece of the puzzle needed by a rational, retributivist legislator is a theory of the restraints she should observe in prohibiting moral wrongs. Promise-breaking may be morally wrong, for example, but it should not be criminally prohibited. Prominent among such restraints is the general right to liberty, making it worse for a legislator to prohibit some moral wrongs than it would be to allow citizens to choose (even wrongly) whether to do such morally wrongful actions. This chapter develops a presumption of liberty (and of the values that stand behind it). It defends a derived right to liberty (where the citizen's right is derived from the more basic legislative duty to enact legislation for some reasons and not others). It also defines a sphere of basic liberty (immune to state regulation for all but the most compelling of reasons) in terms of self-identity. By way of example, these three notions are applied to the legal prohibition of recreational drug use.

Keywords:   theory of restraints, moral wrongs, promise-breaking, right to liberty, citizen's right, basic liberty

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