<p>Virtue jurisprudence views the purpose of law as the promotion of virtue. “Such claims,” as R.A. Duff writes, “cause tremors in contemporary liberal hearts, redolent as they are of nineteenth-century ‘legal moralism’.” But legal moralism is better reconsidered as vice jurisprudence, that is, the purpose of law is not the promotion of virtue through a specific conception of the good, but rather the reduction of vice according to a public morality. This is how James Fitzjames Stephen and Patrick Devlin, the English jurists associated with legal moralism, understood the criminal law. The distinction, as will be argued in this paper, matters for understanding virtue jurisprudence and its relationship to liberalism. According to a liberal conception of law, for instance, law should be neutral among competing conceptions of the good, while permitting the liberty required to realize any of them. Such liberty plausibly extends, for example, to the legal protection of pornography, sports gambling, and drug legalization. According to vice jurisprudence, however, the liberal conception of law, while purporting to express public virtues like toleration, in fact, permits (or even encourages) the proliferation of socially destructive private vices, such as lust, intemperance, avarice, imprudence, sloth, and gluttony, all of which make neutrality impracticable. Vice jurisprudence, by contrast, may retain liberalism’s pretense to neutrality about promoting a specific conception of the good without abandoning the ambition of virtue jurisprudence to promote virtue. Law can promote public virtue by discouraging private vice, thus securing the social cohesion and stability that liberalism requires.</p>

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Legal Moralism Reconsidered: Vice Jurisprudence and the Limits of Liberal Neutrality

  • Tristan J. Rogers

摘要

Virtue jurisprudence views the purpose of law as the promotion of virtue. “Such claims,” as R.A. Duff writes, “cause tremors in contemporary liberal hearts, redolent as they are of nineteenth-century ‘legal moralism’.” But legal moralism is better reconsidered as vice jurisprudence, that is, the purpose of law is not the promotion of virtue through a specific conception of the good, but rather the reduction of vice according to a public morality. This is how James Fitzjames Stephen and Patrick Devlin, the English jurists associated with legal moralism, understood the criminal law. The distinction, as will be argued in this paper, matters for understanding virtue jurisprudence and its relationship to liberalism. According to a liberal conception of law, for instance, law should be neutral among competing conceptions of the good, while permitting the liberty required to realize any of them. Such liberty plausibly extends, for example, to the legal protection of pornography, sports gambling, and drug legalization. According to vice jurisprudence, however, the liberal conception of law, while purporting to express public virtues like toleration, in fact, permits (or even encourages) the proliferation of socially destructive private vices, such as lust, intemperance, avarice, imprudence, sloth, and gluttony, all of which make neutrality impracticable. Vice jurisprudence, by contrast, may retain liberalism’s pretense to neutrality about promoting a specific conception of the good without abandoning the ambition of virtue jurisprudence to promote virtue. Law can promote public virtue by discouraging private vice, thus securing the social cohesion and stability that liberalism requires.