An Examination of the Practicability of Antony Duff and John Gardner's Legal Moralism as a Basis of Criminalisation in Contemporary English Criminal Law

AuthorThomas Yeon
PositionPCLL candidate (HKU) '20; LLM (Human Rights Law) (LSE) '19; LLB (hons) (Durham) '18
An Examination of the Practicability of Antony Duff and
John Gardner’s Legal Moralism as a Basis of
Criminalisation in Contemporary English Criminal Law
Thomas Yeon*
This article critically examines the role played by moral values in the scope and structure of
criminal offences. In analysing the nature and practicality of legal moralism as a basis of
criminalisation, comparisons will be made to notions of responsibility and judgement, and
public accounts of criminal law. For focusing on the use of notions of morality per se, this
article will not discuss in detail the differences between accounts of legal moralism and public
morality. Based on the account of legal moralism advanc ed by Antony Duff and John
Gardner, this article seeks to offer a revised and mo re nuanced account of the role played by
legal moralism in offering a comprehensive account of the scope and structure of criminalisation
based on moral wrongs and the State’s jurisdiction in punishing offers.
At the broadest level, Legal Moralism stipulates that the basis of
criminalising an action should mirror a moral wrongdoing; this equates moral
wrongs with criminal wrongs. Such equation has been of topical interest in terms
of its justification and applicability towards contemporary social contexts and
judicial practices. A justification of criminalisation on grounds of morality must
be based on a defensible definition of morality, not one which confuses it with
mere feelings of distaste.
Legal moralism is generally split into two schools: (i)
positive legal moralism, and (ii) negative legal moralism. A positive legal moralist
* PCLL candidate (HKU) 20; LLM (Human Rights Law) (LSE) 19; LLB (hons)
(Durham) 18
Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford: OUP 2013) 35-
The Practicability of Anthony Duff and John Gardner’s Legal Moralism Vol. 5
argues that the wrongfulness of an action provides a positive reason to criminalise
it for the furtherance of particular objectives; the reason does not have to be
conclusive in justifying the criminalisation of the conduct, but it has to be a good
reason. A negative moralist, in contrast, argues that wrongfulness is a necessary
condition for criminalisation, but it does not provide any positive reason to
criminalise; positive reasons for criminalisation lie elsewherefor example, in
the broader social context. The two views are logically independent. To say that
the absence of wrongfulness is a conclusive reason against criminalisation is not
to say that the presence of wrongfulness is any kind of reason for criminalisation.
To offer a more thorough examination of the nature of moral values and
their use in criminal law, this article focuses on the accounts of legal moralism
advanced by Antony Duff and John Gardner, whichtake morality very seriously
on its own terms”.
It is because their accounts focus exclusively on the nature of
moral values per se, and how such values’ suggestion on appropriate behaviours
should shape the content of criminal law. Given the existence of copious
academic literature on the famous Hart-Devlin debate in the 1960s on the
utilitarian nature of moral values in the context of criminal law, the Hart-Devlin
debate will not be the subject of this article. This article will be divided into three
parts. PART I begins with an analysis of the nature of legal morali sm and the
Millian harm principle, and legal moralism’s relationship with the notion
‘responsibility’ in terms of a defendant’s liability as an autonomous agent. It argues
that legal moralism must have recourse to the notion ofresponsibility’ in order
to reflect one’s accountability under criminal law. In the theory-based discussion
of this part, references will be made to the contractarian theory of responsibility
and the Kantian Categorical Imperative (‘CI’). In PART II, the article moves on
to explore the nature of legal moralism as a normative justification for the general
part of criminal law, and its applicability in articulating mala in se and mala prohibita
crimes. It contends that while legal moralism can justify the criminalisation of male
in se crimes, it would be impractical to use it as the sole or predominant basis for
criminalising mala prohibita crimes. The discussion in this part is predominantly
theoretical and examples will be used to illustrate the aforementioned concepts;
references will also be made to issues of labelling. In PART III, it will examine
Antony Duff, ‘Towards a Modest Legal Moralism’ [2014] Criminal Law and Philosophy
217, 218.
Michael Thorburn, ‘Criminal law as Public Law’ in Antony Duff and Stuart Green, The
Philosophical Foundations of Criminal Law (Oxford; New York: OUP 2011) 22-23.
critically the function of legal moralism in making the criminal law a coercive State
instrument, offering a hybrid account of jurisdiction-morality values for
criminalisation. The crimes of manslaughter and rape will be discussed, and
Malcolm Thorburn’s public law account of criminal law will be compared to legal
moralism in justifying the criminalisation of the aforementioned crimes.
This article argues that Duff and Gardner’s accounts of legal moralism,
despite reflecting the intrinsic responsibility and moral duties that one ought to
owe to another and the public, fail to capture the public element of criminal law
in terms of the reflection of one’s responsibilities towards the society. A revised
account of legal moralism should strike a balance between reflecting the moral
qualities of a crime and the moral responsibility and criminal culpability of an
individual, whilst articulating their social position in the society.
1.1 The Foundational Status of Harm and Multifaceted Nature of Morality
1.1.1 The Harm Principle and the Context of Criminal Law
Criminalisation, as an instance of the State deploying its coercive power to
prohibit and regulate behaviour, requires robust justifications. The justification(s)
offered for criminalising a particular behavior must be able to explain adequately
why the targeted behavior should not merely be discouraged but prohibited. A
commonly referenced justification is John Stuart Mill’s harm principle, which
argues that the only purpose of exercising power rightfully over an individual is
toprevent harm to others”.
The undesirable nature of ‘harm’ provides a sound
theoretical justification for a State to take actions to minimise its impacts on a
polity. However, recourse to the harm principle itself is insufficient, as not all
crimes necessitate harm.
Different conceptions on the nature and extent of harm
generated by an undesirable activity suggest that it is not argumentatively sound
to justify criminalising such activity based on the need to prevent ‘harm’ itself; an
John Stuart Mill, On Liberty (first published 1859, OUP 2015) 13.
For example, a heavy commercial vehicle parking on verges, footpaths or the central
reservations of roads violates section 19 of the Road Traffic Act 1988 (‘RTA’). However,
the crime does not cause any harm in the Millian sense.

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