Alex F. Sarch (University of Surrey School of Law) has published "Legitimate Divergence between Moral and Criminal Blame" on SSRN. Here is the abstract:
Legal moralists think the substantive rules of the criminal law should mirror morality, while acknowledging that they inevitably will not do so perfectly. Thus, Doug Husak suggests that “deviations [from the moral ideal] should be regarded as occasions for regret, as invitations to try to do better.” This is especially plausible where the divergences are isolated practical compromises due to efficiency or resource constraints. But is it always a matter of deep regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? If so, perhaps divergence from morality isn’t always an invitation to do better. This chapter argues that there are principled reasons, not always consequentialist in nature, for the criminal law to come apart from morality.Section I sketches an analytical framework that shows different ways to evaluate divergences between criminal law and morality within the legal moralist view. Section II sketches some core cases of plausibly legitimate divergence. Section III formulates several mid-level principles, not all of which are directly consequentialist in flavor, that can help justify divergences of this kind. Section IV applies the above framework and principles to the examples in Section II to reach provisional conclusions. Overall, the chapter aims not just to provide better tools for assessing overbroad criminal prohibitions, but more fundamentally seeks to dispel the idea that the criminal law’s divergences from morality always sacrifice our principles to the messy necessities of practice. Instead, criminal law’s divergence from morality can itself be a matter of principle.
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