Berger on Polygamy, Liberalism, and Criminal Law Theory

Benjamin L. Berger (Osgoode Hall Law School) has posted Polygamy and the Predicament of Contemporary Criminal Law (in Gillian Calder and Lori Beaman, eds. Polygamy's Wrongs? The Social Family in the Culture of Rights, Forthcoming) on SSRN. Here is the abstract:

This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a ?strange bedfellows? puzzle ? the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law.

And from the paper:

The criminal law that we have inherited is the child of the 19th century, a time in which those with settled and sometime fierce metaphysical convictions wielded the criminal law in unabashed support of their worldviews. In this era the criminal law took on a capacious moral role in society. And although we now inhabit a political culture of liberalism in which the conceit of metaphysical agnosticism is essential to law?s self- understanding,53 our criminal law is simply not cut from the same cloth. Contemporary debates about polygamy reveal the extent to which we have an illiberal criminal law in the midst of a political culture of liberalism. One need only flip open the Criminal Code, our somewhat updated late 19th century expression of ethics, to find offences that would sit comfortably in a late Victorian British elite context of largely shared basicmetaphysics. Today, however, those offences ? of which polygamy is no doubt one ? present deep conceptual quandaries for governance in an ontologically diverse society.

Very interesting & recommended.

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