04/02/2019
Philosophy Department
Thirty-Fifth Annual Selfridge Lecture
“Agency, Self-Authorship, Belonging: Principles for a Publicly Justifiable Criminal Code”
Alan Brudner, Albert Abel Professor Emeritus of Law and
Professor Emeritus of Political Science, University of Toronto
Tuesday, April 16, 2019
6:30 P.M.
Linderman Library 200
In this talk, I’ll present a Hegelian view of the general principles that ought to, and that for the most part do, guide liberal-democratic states in deciding what sort of conduct to criminalize. I’ll then derive from this view a justification for criminalizing certain kinds of harmless conduct between consenting adults, taking polygamy pure and simple as an example of such a kind. By polygamy pure and simple, I mean the voluntary, contemporaneous marriage between one person and more than one other person, disentangled from the harmful conduct often associated with polygamy but that is separately criminalized. Many believe that bans on polygamy pure and simple are explicable only in terms of legal moralism. And so, it is thought, once the liberal state rejects legal moralism as being incapable of providing a public justification for so-called morals offences, it has no other publicly justifiable ground to stand on when called upon to justify criminalizing harmless polygamy. Without such a ground, polygamy bans seem as vulnerable to the liberal juggernaut as bans on homosexual acts and refusals to grant marriage licenses to same-sex couples. I resist that conclusion. Abandoning the ground of legal moralism does not mean stepping into a normative vacuum with respect to all cases of harmless conduct between consenting adults. There is, I’ll argue, a public justification for a ban
