Strengths and Weaknesses of Duff’s “Towards a Modest Legal Moralism”

For my Medium post this week, I’m going to analyze Duff’s article “Towards a Modest Legal Moralism” both for its argument and as a writing. I’ll list the strengths of the article before getting into a few weaknesses.

First, Duff structures his article in such a way that makes his argument clear from beginning to end. Arguments with clarity are always more effective than unclear, ambiguous arguments. Duff begins his article by drawing two contrasts: positive vs. negative Legal Moralism and modest vs. ambitious legal moralism. He then gives his argument in defense of positive modest Legal Moralism. It was super helpful that he defined each of these words, because I would have been totally in the dark without his definitions.

Second, Duff uses transitional topic sentences that make his article flow logically from paragraph to paragraph. Reading each topic sentence is like getting a mile-high view of his entire paper. This adds to the clarity of his argument.

Third, Duff’s countering of the use of the knives in public scenario proposed by another philosopher seems successful. He argues that carrying a knife becomes wrongful once the regulation against carrying knives was enacted. This makes it pre-criminally wrong.

Fourth, viewing criminalization not merely as a single act (like passing legislation) but as a process helped me understand criminalization in a fuller way. It is interesting to think of non-state actors as a part of the criminalization process when they choose to either report or not report a crime. One time I saw my car get hit in a parking lot, but there was negligible damage to my car and a fairly large dent in the other car. By choosing not to report the accident to the police, I became a part of the criminalization process.

One weakness of Duff’s argument is that by not proposing one general principle for criminalizing actions, it becomes difficult to determine what types of actions can/should be criminalized. While Duff makes great distinctions between positive and negative, modest and ambitious, and other qualities of moralism, every distinction that he adds makes his theory harder to apply to specific scenarios.