There is a very interesting new project at the University of Chicago called the Carceral Notebooks. The project is interesting not only because of its general topic—the intersection of law and morality—but also because it is student authored and being published electronically and printed without a commercial publisher. Of particular interest to me is the essay on Harm and Morality Revisited by Mark D. Davis. This paragraph from the introductory essay by U of C law professor Bernard Harcourt seems to describe the scope of the project:
Where do we stake the boundary of the criminal law—or, more importantly, how? How do we decide what to punish? Do we distribute these vices, these recreations, these conducts—what do we even call these things?—into two categories, the passable and the penal, and then carve some limiting principle to distinguish the two? Are we, in the very process, merely concocting some permeable line—a Maginot line—to police the criminal frontier? Or do we formulate the limiting principle first and then deploy it to parse these things? Or do we do a little of both, going back and forth, and back again, from moral intuition to principled ideal? Do we lean more towards one or the other? Do we peak behind the curtain, every once in a while, to make sure that our product is coherent, aesthetically pleasing, perhaps convincing? And how is it exactly that the boundaries change over time? What is it that pushes one of these things, previously criminalized—fornication, perhaps, or prostitution, or state lotteries—from the penal category to the permissible? How is it that the edifice that our parents constructed—and their parents and grandparents before them—shifts, settles, collapses in some places, is fortified in others?
The line between morality (which should be a matter of both individual choice and social reprobation) and justice (which should be a matter of legal coercion) is a difficult one to draw, but all but totalitarian political philosophies must do so. While many just punt, the attraction of this project is its willingness to address the topic straight on. (I have offered my views on this topic in The Structure of Liberty: Justice and the Rule of Law and, most recently, in The Moral Foundations of Modern Libertarianism.)
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