Legislative duty and the independence of law

Law and Philosophy 6 (2):187 - 203 (1987)
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Abstract

This essay considers the nature of duties incumbent on legislators in virtue of the office itself. I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral conditions into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality and the criminal law is therefore much less direct than assumed in most theories of the criminal law.

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