Crime, Morality, and Republicanism

One of the abiding concerns of the philosophy of law has been to establish the relationship between law and morality. Within the criminal law, this concern often takes the form of debates over legal moralism--that is, the position that immorality is sufficient for criminalization (Alexander 2003: 131). This paper approaches these debates from the perspective of the recently revived republican tradition in politics and law. Contrary to what is usually taken to be liberalism\u27s hostility to legal moralism, and especially to attempts to promote virtue through the criminal law, the republican approach takes the promotion of virtue to be one of the necessary aims of a polity. The virtue in question, however, is a specifically civic virtue, and calling for its promotion does not entail that the criminal law should be a straightforward reflection of the conventional morality of a society. What republicanism offers, instead, is a form of legal moralism resting on a distinctively civic morality that lays particular stress on such virtues as fair play and tolerance