Criminal Law and Morality in the Age of Consent: Interdisciplinary Perspectives (Ius Gentium: Comparative Perspectives on Law and Justice, 84)

This book discusses the relation between morality and politics, and morality and law, a field that has been studied for more than two thousand years The law is a part of human culture, and this touches upon a dynamic reality that is connected to the relation between nature and freedom, nature and culture. If such relations are not clearly understood, as is the case today, the relation between morality and law cannot be properly comprehended either. The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. And since the relationship involves criminal law, legal philosophy and legal history, interdisciplinary approaches are always needed. Featuring fifteen original contributions by legal scholars from various European and American universities, the book does not pretend to solve the complexity of the relation between morality and criminal law, but instead expresses criticism, offers some proposals and stimulates further thought. The book tackles the topic from an interdisciplinary perspective (criminal law, constitutional law, legal philosophy and legal history, among others). As such, it appeals not only to scholars and students, but also to lawyers, policymakers, historians, theologians, philosophers and general readers who are interested in the legal, social, political and philosophical issues of our time. Contents Criminal Law and Morality Revisited: Interdisciplinary Perspectives References Criminal Law and Morality: Historical Perspectives The Rise of Ethical Reproach in Spanish Late Scolasticism 1 Purpose of Penalty, Notion of Guilt and Ethical Blame in Today’s Discussion 2 The Free-of-Blame Medieval Term of the “Punishment” 3 Arising of the Idea of Sin Punishment 4 The Notion of Sin Penalty 5 The Ethical Reproach of the Criminal Law 6 Is the Ethical Blame to be Abolished in Criminal Law? Primary Literature Liberties, Rights and Punishments in Modern Natural Law 1 Introduction 2 The Changes in the Concept of Law 3 Romanist Criminal Law 4 The Criminal Law of Modern Iusnaturalism 5 Conclusions References Roman Dutch Criminal Law and Calvinism: Calvinist Morality in De Criminibus (1644) of Antonius Matthaeus II 1 Introduction 2 Calvinism Versus Arminianism 3 Calvinist Morality in Antonius Matthaeus II’s De Criminibus (1644) 3.1 Punishing Crimes in Accordance with the Decalogue 3.2 Punishment as Retributive Justice and the Rejection of Torture 3.3 Defining Crimes: Abortion and Adultery 3.4 States, Divine Law and Religious Freedom 3.5 Religion, Morals and Criminal Law: The Courts of Heaven and Earth 4 Conclusions References The Role of Nature in the Secularization of Criminal Law in Europe (17th–19th Centuries) 1 Introduction: The Myth of an Enlightened Criminal Law Without Morality 2 The Role of Nature in the Secularization Process of Criminal Law 2.1 Criminal Law, Nature and Morality in the 17th Century 2.2 Criminal Law, Nature and Morality in the 18th Century 2.3 Criminal Law, Nature and Morality in the 19th Century 3 Concluding Considerations References Habits of Intelligence. Liberty of Expression and the Criterion of Harm in John Stuart Mill 1 Utilitarism and Representative Government 2 The Criterion of Harm 3 Artistocratic Liberalism and the Benefits of Freedom 4 Spiritual Power 5 Consequences of the Application of Mill’s Criterion References Criminal Law and Morality: Philosophical and Criminal Law Perspectives The Fundamentals of Ethics 1 Introduction 2 Two Philosophies, Two Schools of Thought 2.1 Aristotelianism 2.2 Nominalism 2.3 The Second Spanish Scholastic 3 Implications for Posterity References What is Perfectionism? 1 Perfectionism in Aristotle, Saint Augustin and Aquinas 2 The Hart-Devlin Debate 3 Liberals Versus Communitarians 4 Joseph Raz’s Perfectionist Liberalism 5 Robert P. George and the Role of Government in the Maintenance of Moral Ecology References Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm as a Key Issue for the Theory of Justice 1 Duality as a Conflict? 2 Justice Does not Consist in Behaviour Correspondence 3 The Retaliation of Evil Does not Reactivate the Good 4 Multidisciplinary Contexts in Which the Retributive Paradigm is Manifested 5 The Role of Restorative Justice as a Prototype of a Cultural Reversal. References Paternalism and Moral Limits of Criminal Law 1 Introduction 2 Main Arguments Against Paternalism: Autonomy as Core Value, Principle of no Interference, Relationship State/Citizens 3 Paternalism and Criminal Law 4 Soft Paternalism 5 Tutelary Paternalism: The Asymmetry of Human Relationships 6 A Neutral State in Moral Issues? The Duff’s Relational Account 7 The Moral Limits of Libertarian Criminal Law 8 Changing Lens Concerning Relations Among Legal Paternalism and Legal Moralism 9 Paternalism in Transition: Toward New Challenges References Human Dignity and Legally Protected Goods in Criminal Law 1 Introduction 2 The Philosophical Debate Over the Concept of the Dignity of a Person 2.1 The Ontological Notion of Dignity 2.2 Non-ontological Notions of Dignity 3 Autonomy and Dignity of the Person 4 Dignity and Free Development of Personality 5 Criminal Law Protection of Dignity: Moral Integrity 6 Dignity, Moral Integrity and Prostitution 7 Dignity, Moral Integrity and Surrogate Motherhood References From Eunomia to Paideia: The Educating Nature of Law 1 Similarities Between Law and Education 2 On the Educational Nature of the Law: Aristotle 3 On Education Aimed at Obeying the Law 4 An Ancient Proposal to End with References Criminal Law and Morality: Controversial Issues From Crime to Right 1 Introduction. Real Issues 2 Decriminalization and Legal Asset Protection 3 Right to Do Wrong: Individual Autonomy and State Neutrality 4 From Crime to Right: A not-so-Long Road 5 Unintelligibility of Right and Other Issues 6 Ideas to Understand Crime and Right in Another Way References The Role of the Criminal Law in Regulating Pornography References Dignity at the End of Life and Decriminalization of Euthanasia 1 Introduction 2 Three Competing Views on Dignity at the End of Life 3 Autonomy and Euthanasia as a Right to Put an End to One’s Life 3.1 Autonomy of Persons in a Conscious and Terminal State or with Unbearable Suffering 3.2 Autonomy and Euthanasia of Unconscious or Terminally Ill Persons 3.3 Is There a Right to Die? 4 The Utilitarian Perspective in the End-of-Life Issues 4.1 Euthanasia and Dignity as Quality of Life 4.2 The Slippery Slope Argument 5 The Right to Life and Justice at the End-of-Life 5.1 Euthanasia and the Inviolability of Life 5.2 The Distinction Between Euthanasia and Refusal of Overzealous Treatment 6 Conclusion References This book discusses the relation between morality and politics, and morality and law, a field that has been studied for more than two thousand years. The law is a part of human culture, and this touches upon a dynamic reality that is connected to the relation between nature and freedom, nature and culture. If such relations are not clearly understood, as is the case today, the relation between morality and law cannot be properly comprehended either. The relation between morality and criminal law needs to be continually revised and updated because human beings cannot be detached from time and historical development, and social changes and new situations require new interpretations. And since the relationship involves criminal law, legal philosophy and legal history, interdisciplinary approaches are always needed. Featuring fifteen original contributions by legal scholars from various European and American universities, the book does not pretend to solve the complexity of the relation between morality and criminal law, but instead expresses criticism, offers some proposals and stimulates further thought. The book tackles the topic from an interdisciplinary perspective (criminal law, constitutional law, legal philosophy and legal history, among others). As such, it appeals not only to scholars and students, but also to lawyers, policymakers, historians, theologians, philosophers and general readers who are interested in the legal, social, political and philosophical issues of our time.-- Provided by publisher Criminal law and morality revisited : interdisciplinary perspectives /Aniceto Masferrer --Criminal law and morality : historical perspectives --The rise of ethical reproach in Spanish late Scholasticism /Harald Maihold --Liberties, rights and punishments in modern natural law /Manuel Rodríguez Puerto --Roman Dutch criminal law and Calvinism : Calvinist morality in De criminibus (1644) of Antonius Matthaeus II /Janwillem Oosterhuis --The role of nature in the secularization of criminal law in Europe (17th-19th centuries) /Aniceto Masferrer --Habits of intelligence : liberty of expression and the criterion of harm in John Stuart Mill /Ignacio Sánchez Cámara --Criminal law and morality : philosophical and criminal law perspectives --Build and restore good human relationships : overcoming the retributive paradigm as a key issue for the theory of justice /Luciano Eusebi --Paternalism and moral limits of criminal law /Luigi Cornacchia --Human dignity and legally protected goods in criminal law /Pedro Talavera --From eunomia to paideia : the educating nature of law /Vicente Bellver --Criminal law and morality : controversial issues --From crime to right /Marta Albert --The role of the criminal law in regulating pornography /Gerald V. Bradley --Dignity at the end of life and decriminalization of euthanasia / Jorge Nicolás Lafferriere