Posted by Randy Barnett:
Morality and Law:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116962486
There is a very interesting new project at the University of Chicago
called the [1]Carceral Notebooks. The project is interesting not only
because of its general topic--the intersection of law and
morality--but also because it is student authored and being published
electronically and printed without a commercial publisher. Of
particular interest to me is the essay on [2]Harm and Morality
Revisited by Mark D. Davis. This paragraph from the [3]introductory
essay by U of C law professor Bernard Harcourt seems to describe the
scope of the project:
Where do we stake the boundary of the criminal law�or, more
importantly, how? How do we decide what to punish? Do we distribute
these vices, these recreations, these conducts�what do we even call
these things?�into two categories, the passable and the penal, and
then carve some limiting principle to distinguish the two? Are we,
in the very process, merely concocting some permeable line�a
Maginot line�to police the criminal frontier? Or do we formulate
the limiting principle first and then deploy it to parse these
things? Or do we do a little of both, going back and forth, and
back again, from moral intuition to principled ideal? Do we lean
more towards one or the other? Do we peak behind the curtain, every
once in a while, to make sure that our product is coherent,
aesthetically pleasing, perhaps convincing? And how is it exactly
that the boundaries change over time? What is it that pushes one of
these things, previously criminalized�fornication, perhaps, or
prostitution, or state lotteries�from the penal category to the
permissible? How is it that the edifice that our parents
constructed�and their parents and grandparents before them�shifts,
settles, collapses in some places, is fortified in others?
The line between morality (which should be a matter of both individual
choice and social reprobation) and justice (which should be a matter
of legal coercion) is a difficult one to draw, but all but
totalitarian political philosophies must do so. While many just punt,
the attraction of this project is its willingness to address the topic
straight on. (I have offered my views on this topic in [4]The
Structure of Liberty: Justice and the Rule of Law and, most recently,
in [5]The Moral Foundations of Modern Libertarianism.)
References
1. http://www.thecarceral.org/journal-vol1.html
2. http://www.thecarceral.org/morality.pdf
3. http://www.thecarceral.org/imaginations.pdf
4.
http://www.amazon.com/exec/obidos/ASIN/0198297297/ref=ase_randyebarnetbost/002-6604625-3081621
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=565202
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