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August 23, 2013

"Vice Crimes and Preventive Justice"

The title of this post is the title of this notable new paper by Stuart Green now available via SSRN. Especially as I spend this semester discussing prohibition of various substances in my conjunction with teaching a marijuana law seminar (and working on this related blog), I am definitely adding this piece to my weekend reading list. Here is the abstract:

This symposium contribution offers a reconsideration of a range of "vice crime" legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms.

This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, "preventive justice" legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.

August 23, 2013 at 10:35 AM | Permalink

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// "According to the standard account, the original justification for these offenses was purely moralistic" \\
STRAW MAN! !

The motivation for this disparaging (mis)"take" on history is to better assail it: the truth that from the 10 Commandments
to the English Common Law, Judeo-Christian statutes have abundant benefits and justifications, is uncomfortable to many.

When King James I "moralistically" yet successfully banned tobacco from his court over 400
years ago, he cited foul breath, shortness of breath, staining, and the like. Was he incorrect?

Posted by: Adamakis | Aug 23, 2013 3:35:54 PM

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