Punishing Mere Immorality? Skeptical Thoughts from a Comparative Perspective

Abstract

This essay explores the issue of using the criminal law to enforce moral beliefs, a topic that has been traditionally addressed by continental criminal law scholars by resorting to the theory of the “legal good” (Rechtsgutheorie). In turn, Anglo-American scholars have tackled the same issue through the lenses of the harm principle. However, both theories proved inadequate to solve this long-standing penal policy dilemma. Despite the many declarations of the principle of secularism in academic debates, the question of whether merely immoral conducts should be punished remains open to this day. This essay argues that a viable solution would be to shift the focus of the discussion from the legitimacy of prosecuting to the opportunity of punishing. Therefore, the debate should be re-oriented to focus on the mandatory preconditions to be met in a democratic and efficient system—one that sees criminal punishment as the real last resort to deal with contentious issues—before the criminal law can be deployed.