ASSIGNMENT

Assignment

Assignment

As a topic, the legal enforcement of morality is usually taken to center on the question whether a norm's status as a valid moral norm is sufficient to justify its enforcement through the criminal law. That question in turn is often phrased as the question of the legitimacy of “vice crimes” or “victimless crimes.” And, indeed, the principal focus of this chapter will be on precisely that question. It is necessary, however, to begin by setting aside some other issues that “the legal enforcement of morality” might suggest. First, the flip side of the question whether immorality is sufficient for illegality is the very large question whether immorality is necessary for illegality. Although many of the acts punished by the criminal law - - for example, murder, rape, battery, theft, reckless endangerment - - are straightforwardly immoral, many other punishable acts are not. In the absence of the federal Internal Revenue Code, there is no moral norm that requires me to pay precisely thirty-six percent of my income to the federal government. In the absence of the California Motor Vehicle Code, there is no moral norm that requires me to drive no faster than thirty-five miles per hour on Sandburg Avenue.

And similarly, although many of the acts that are legal wrongs civilly rather than criminally are also immoral - - for example, intentional breaches of contracts, certain torts, certain nuisances - - many others are not, at least in the absence of legal proscription. If, however, we confine ourselves to legal rules proscribing and mandating conduct, as opposed to the myriad legal rules that define powers, create immunities, establish institutions, and so forth - - and rules proscribing and mandating conduct are what are connoted by “legal enforcement” - - then certainly a case can be made that despite first appearances, immorality is necessary for illegality. Even if there is no moral norm (in the absence of a legal norm) requiring me to give precisely thirty-six percent of my income to the federal government, there may be a moral norm requiring me to do my fair share to support governmental services and to comply with the specification of that fair share so long as the specification falls within reasonable limits and is arrived at through reasonably fair procedures. Likewise with driving thirty-five miles per hour on Sandburg Avenue.

One will see in this argument a suggestion of the distinction within criminal law between those criminal acts that are mala in se (wrong in themselves), such as murder and rape, and those that are mala prohibita, or wrong because prohibited. But the distinction is misleading in this sense: although many specific acts are wrong only because they are prohibited, they are tokens of types of acts that are wrong in themselves, such as failing to do one's fair share to support the government, or driving at an unreasonable speed. Thus, a good case can be made for the proposition that insofar as law directly regulates conduct through proscription and mandate, the immorality of ...