Infidelity and the Possibility of a Liberal Legal Moralism

This paper argues that according to the influential version of legal moralism
presented by Moore infidelity should all-things-considered be criminalized. This is interesting
because criminalizing infidelity is bound to be highly controversial and because
Moore’s legal moralism is a prime example of a self-consciously liberal legal moralism,
which aims to yield legislative implications that are quite similar to liberalism, while
maintaining that morality as such should be legally enforced. Moore tries to make his
theory yield such implications, first by claiming that the scope of our moral obligations is
much more limited than legal moralists have traditionally claimed, and second by allowing
for the possibility that the goodness of legally enforcing morality is often outweighed
by the badness of limiting citizens’ morally valuable autonomy and spending
scarce resources on enforcement. If Moore is successful in this, legal moralism is
strengthened because it becomes immune to many of the most damaging liberal objections.
By showing that despite making those moves Moore’s legal moralism is still
committed to criminalizing infidelity, a manifestly illiberal implication for legislation, it
is established that Moore is unsuccessful in creating a liberal legal moralism, and
Moore’s failure in this regard raises questions about whether there can be such a thing as
a liberal legal moralism.