Abstract
Legal moralists think criminal law rules should mirror morality, while acknowledging that they inevitably won't do so perfectly. Legal moralists tend to see this as regrettable. But is it always a matter of regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? This chapter argues that there are good reasons, not always consequentialist in nature, for the criminal law to come apart from morality. Section I sketches an analytical framework for evaluating divergences between criminal law and morality. Section II sketches some core cases of apparently legitimate divergence. Section III formulates several mid-level principles, not all of which are directly consequentialist in flavor, that can help justify divergences of this kind. Section IV applies the previous framework and principles to the examples in Section II to reach provisional conclusions. Overall, the chapter aims not just to provide better tools for assessing overbreadth in the criminal law, but more fundamentally seeks to dispel the idea that the criminal law's divergences from morality always sacrifice our principles to the messy necessities of practice. Instead, I argue, criminal law's divergence from morality can itself be a matter of principle.