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The Structures of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2011

Print ISBN-13: 9780199644315

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199644315.001.0001

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Constitutionalism and the Limits of the Criminal Law

Constitutionalism and the Limits of the Criminal Law

(p.85) 5 Constitutionalism and the Limits of the Criminal Law
The Structures of the Criminal Law

Malcolm Thorburn

Oxford University Press

This chapter is concerned with the internal limiting principles of the criminal law. That is, rather than considering the external constraints that can be gleaned from constitutional law or from pragmatic concerns about the costs of enforcement, it focuses simply on what positive rationales for criminalization are consistent with our best understanding of criminal law's role in the legal system. It argues that we are liable to misunderstandings about the proper scope of the criminal law if we think of it as a whole unit, a law unto itself, whose moral value can be fully explained independently of any other area of law. Both schools of criminal law theory that dominate the contemporary debate are guilty of this error. Utilitarians and legal moralists both try to show that the criminal law, understood as a freestanding moral practice, is consistent with their favoured understanding of what morality requires. The chapter argues that we can both make the best sense of a number of key doctrines in criminal law and see the criminal law in an attractive moral light if we understand it to be the enforcement tool of last resort for legal standards set out elsewhere in the law. Rather than trying to show directly how the criminal law serves moral ends, the chapter argues that we can provide a more attractive account if we try to show how criminal law plays a crucial role in a larger system of law that, in turn, accomplishes a crucial moral task. That task is the familiar role of legal institutions in liberal theory: making it possible for individuals to live together secure in their claims of individual freedom. The moral value of the criminal law comes from its role in making real the law's promise of freedom to one and all.

Keywords:   internal limiting principles, criminal law, Utilitarians, legal moralists, moral practice, morality, legal institutions

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