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A Non-Exclusionary Theory of Legislative Aim: Taking Aim at Moral Wrongdoing

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/9780199599493.003.0016
A Non-Exclusionary Theory of Legislative Aim: Taking Aim at Moral Wrongdoing

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A theory of criminal legislation should tell us what the criminal law should prohibit. Part of that theory should give an answer to the question of legislative motivation: what should the legislative be trying to achieve by prohibiting some actions and not others? A taxonomy of such theories is developed from John Stuart Mill, and then a different, and simpler, taxonomy is substituted for Mill’s. I argue in favour of one entrant in this revised taxonomy, the ‘non-exclusionary’ entrant, concluding that a retributivist legislator should be aiming to prohibit all and only moral wrongdoing in his legislation (for only such wrongdoing is the fit subject of retributive punishment).

Keywords: harm principle; harms to others; harms to self; harmless wrongs; offense to others; legal moralism; utilitarianism

Chapter.  10578 words.  Illustrated.

Subjects: Jurisprudence and Philosophy of Law

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