Abstract
Legal moralists hold that the immorality of an action is a sufficient reason for the state to prevent it. Liberals in the tradition of Mill generally reject legal moralism. However, Larry Alexander has recently developed an argument that suggests that a class of legal restrictions on freedom that most liberals endorse is, and perhaps can only be, justified on moralistic grounds. According to Alexander, environmental restrictions designed to preserve nature or beauty are forms of legal moralism. In this paper, I explore two liberal lines of response to Alexander’s argument. The first argues that an aesthetic interest is among our basic legally protectable interests. This argument claims that environmental and other regulations designed to protect beauty and nature are justified in order to prevent setbacks to this aesthetic interest. The second focuses on a democratic conception of the public interest. It holds that democratic communities are entitled, through their institutions, to shape the community and environment they live in. On this view, the community need not appeal to moralism to justify its adoption of environmental regulations, since in adopting such regulations it is simply enacting its collective preferences. On these grounds, I claim that Alexander’s case for the claim that aesthetic regulations can only be justified on moralistic grounds is much weaker than he takes it to be.
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Notes
This is legal moralism in the narrow or strict sense as defined by Feinberg. See Feinberg (1990).
See Feinberg (1990).
The United States Supreme Court considered the issue of virtual child pornography in Ashcroft v. Free Speech Coalition, 535 US 234 (2002). Here I leave aside concerns about freedom of expression, including whether a prohibition on virtual child pornography would be overbroad or would have a chilling effect on protected speech. Thanks to Mary Anne Franks for discussion of this case.
It might be objected against this step in the argument that if there is such an aesthetic interest it is not universal, that is not everyone can be said to possess it. However, the fact that an interest is not universal is not a reason to think that it is not worth protection by the state. As Feinberg points out not even the welfare interests are universal in this sense (Feinberg 1984). What we must be convinced of is that the aesthetic interest is “so widespread as to be almost universal,” or more precisely that it is a “reasonable interest reasonably ascribed …to the standard person that must always be before the legislator’s eye.” (Feinberg 1984)
See for example Elliot (1982).
For a good overview of some of this research, see Lambin (2012).
Lambin makes a similar point about arguments seeking to persuade people to adopt a more sustainable lifestyle (Lambin 2012).
Thanks to an anonymous reviewer for this journal for suggesting that I discuss these cases.
Alexander’s example of such a case involves the destruction of the surface of the moon by robot mining (2010).
Does the constrained entitlement to legislate preferences extend to the entitlement to legislate moralistic preferences? For example, can liberals support rules aimed at enforcing some standard of modesty in public on the basis of the shared preference for a society in which certain standards of modesty are observed? I see no reason to exclude moralistic preferences as long as two important points are kept in mind. First, the justification for enforcing the preference is not itself moralistic but appeals to the entitlement to legislate preferences. Second, the case for limiting liberty based on moralistic preferences must be rigorously constrained to make it consistent with personal rights to autonomy and privacy. Since the enforcement of many moralistic preferences would violate privacy rights, while the enforcement of other kinds of preferences (such as the preference for the preservation of a species) will not, the liberal will often have a strong case against permitting the enforcement of particular moralistic preferences, but this will not affect the case she can make in favor of the entitlement to legislate some democratic preferences. Thanks to an anonymous referee for this journal for pressing me to clarify this point.
See Pogrebin (2012)
References
Alexander, L. (2003). The legal enforcement of morality. In R. G. Frey & Christopher Heath Wellman (Eds.), A companion to applied ethics (pp. 128–141). Oxford: Oxford University Press.
Alexander, L. (2010). Plastic trees and gladiators: liberalism and aesthetic regulation. Legal Theory, 16, 77–90.
Devlin, P. (1965). The enforcement of morals. Oxford: Oxford University Press.
Dworkin, G. (1972). Paternalism. The Monist, 56(1), 64–84.
Elliot, R. (1982). Faking nature. Inquiry, 25, 81–93.
Feinberg, J. (1984). Harm to others. Oxford: Oxford University Press.
Feinberg, J. (1990). Harmless wrongdoing. Oxford: Oxford University Press.
George, R. P. (1993). Making men moral. Oxford: Oxford University Press.
Lambin, E. (2012). An ecology of happiness. Chicago: Chicago University Press.
Pogrebin (2012). Architecture’s ugly ducklings may not get time to be swans. The New York Times. http://www.nytimes.com/2012/04/07/arts/design/unloved-building-in-goshen-ny-prompts-debate-on-modernism.html?_r=0. Accessed April 13. 2012.
Acknowledgments
This paper was presented at the New Voices in Legal Theory Roundtable at the University of Miami School of Law in 2012. I am grateful to the participants for their comments and discussion and to an anonymous referee from this journal.
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Peterson, J. Legal Moralism, Interests and Preferences: Alexander on Aesthetic Regulation. Philosophia 43, 485–498 (2015). https://doi.org/10.1007/s11406-015-9597-3
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DOI: https://doi.org/10.1007/s11406-015-9597-3