Positive vs Negative Legal Moralism

As one could tell from the title of this article, today I will be discussing positive and negative legal moralism. I will begin by defining both distinctions of legal moralism and then discuss that we should use negative legal moralism due to the fact that positive legal moralism provides too many reasons to criminalize activities that should not be criminalized.

First, in order to understand why I believe that negative legal moralism is the way that we should justify restricting someone’s liberty in comparison to positive legal moralism, I must first define each. Positive legal moralism as defined by Duff is where one believes that wrongdoing is a reason to criminalize, but that it is not necessarily a compelling or sufficient reason. As again defined by Duff, negative legal moralism is the belief that wrongdoing is a necessary constraint on criminalization, but not a reason to criminalize. It is important to understand this. This constraint is known as a wrongness constraint. In the case of negative legal moralism, this does not allow one to criminalize something that is not wrong. Philosophers have already offered counterexamples that expose certain weaknesses of negative legal moralism, however, these will not be addressed in this article.

Now, it is time to discuss why I believe that positive legal moralism is too encompassing. One’s beliefs about the basic nature of humans will wildly affect which legal moralism belief they will adopt. For example, if one believes that humankind would never misuse positive legal moralism, then they could easily justify that we should adopt positive legal moralism due to the fact that it allows a perfect legal institution to have more tools at its disposal to protect its citizens. However, I believe that this could only exist inside of a utopia, therefore, this power could and would easily be misused by corrupt institutions to criminalize actions or items that should not otherwise be criminalized. This is where I believe that negative legal moralism allows a natural balance of power.

Negative Legal moralism does not give one a reason to criminalize something based on the fact that it is wrong. First, one might have some major worries with this, including the fact that some ideas should be criminalized because they are wrong. Let's take for example an extreme case, murder. In this case, one might believe that we cannot criminalize murder using negative legal moralism, however, you can. Negative legal moralism does not allow one to criminalize an act that is not wrong. However, this does not mean that under legal moralism one could not justify criminalizing murder. As it is known murder is wrong in itself (mala in se), thus, it is easily justifiable to criminalize. I believe that using negative legal moralism allows a basis for criminal law. In this case, that would mean that if something is not wrong then it should not be criminalized, however, there is still power here due to the fact an organization could make something wrong (mala prohibitum), however this would require more work than using positive legal moralism, which would just allow one to easily criminalize anything deemed as wrong no matter if there was a justification or excuse for the action. As we all know, in some circumstances, doing something wrong should not always be punished. As stated before, for these reasons I believe that negative legal moralism provides balance to criminal law, where positive legal moralism allows for too much power.

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