Chapter

Liberty’s Limits on Legislation

Michael Moore

in Placing Blame

Published in print July 2010 | ISBN: 9780199599493
Published online September 2010 | e-ISBN: 9780191594649 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199599493.003.0018
Liberty’s Limits on Legislation

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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

Chapter.  24836 words. 

Subjects: Jurisprudence and Philosophy of Law

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