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

Abstract

This article criticallyexamines 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 advanced by Antony Duff and John Gardner, this article seeks to offer a revised and more 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 others.