Abstract
In this paper I argue that Joel Feinberg was wrong to suppose that liberals must oppose any criminalization of “harmless immorality”. The problem with a theory that permits criminalization only on the basis of his harm and offense principles is that it is underinclusive, ruling out laws that most liberals believe are justified. One objection (Arthur Ripstein’s) is that Feinberg’s theory is unable to account for the criminalization of harmless personal grievances. Another (Larry Alexander’s and Robert George’s) is that it cannot account for public decency laws. I shall reject both of these underinclusiveness objections in favor of one that focuses on the “free floating evil” of corpse desecration. Liberals need “pure” legal moralism (PLM) to explain their support for a criminal ban on mistreatment of the dead. I also argue that while deterrence is plausibly regarded as the primary rationale for criminalizing and punishing wrongs like murder or rape, it is not plausibly regarded as any part of the rationale for criminalizing free floating evils. The point of punishing corpse desecrators has to be either retribution or the promotion of virtue/discouraging of vice. Finally, I consider Feinberg’s reason for rejecting all PLM, namely, that competent adults have a right to personal sovereignty or autonomy, and the state’s duty to respect that right trumps the desirability of punishing or reducing the vice associated with harmless immorality. I argue that Feinberg’s argument here fails because it exaggerates the right’s strength and scope.
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Notes
Hart 1963, p. 50.
Duff 2013.
Contra Michael Moore (Moore 1997, p. 645). Moore says that he supports a legal moralism committed to this sufficiency claim, but he seems to assume that a “sufficient” reason is merely a good one, whereas I assume it has to be a conclusive one.
Whether crimes and torts have different “moral essences,” so to speak, and if so what they are, is disputed. Marshall and Duff 1998 hold that crimes are “public” while torts are “private” wrongs; Jean Hampton (Hampton 1994) supposes that with crimes a “retribution response by the state” would be appropriate, whereas with torts such a response is inappropriate. Note that if the distinction in question is crime/tort, then misdemeanors and offenses (e.g. littering) as well as felonies count as “crimes” and the criminal sanction may be a small fine rather than any sort of “hard treatment.”
George 1995. Prudential costs stand in contrast to rights-based ones, e.g. that the law violates a right to fundamental liberty, “personal sovereignty,” a “right to do wrong,” or the like.
As he notes (Feinberg 1990, pp. 8–10) there is another “impure” variety of legal moralism that appeals to some version of the harm principle. Devlin’s contention that the failure of criminalize flagrant violations of positive morality will lead to social disintegration is an example. (ii) is a form of what Duff calls “positive” and “extreme” legal moralism.
See Scoccia 2013.
See Feinberg 1990, p. 19 for a helpful chart.
The right for Feinberg protects only acts that are “sufficiently” voluntary given the risks of harm to self they create. If we thwart someone’s choice to drink coffee to which he has just added strychnine in the mistaken belief that it was sugar, or to chop off his own hand with an axe while in a state of drug induced temporary insanity, we are not overriding his autonomy for the sake of his welfare; the right to autonomy simply does not protect substantially involuntary choices like these. Thus, interference with such choices for the person’s own good is “soft” paternalism. “Hard” paternalism imposes on a competent adult (“for his own good”) values or preferences that he would disavow when factually well informed and thinking clearly. An example is forcing a Jehovah’s Witness to submit to a life-saving blood transfusion.
See Feinberg 1990, pp. 26–33 and 325–8. “No other non-grievance evil has as much weight as this one, derived from unavoidable nonconsensual suffering. Liberalism must bend to permit an exception in this special kind of case. I think that it can bend without breaking.” (p. 33).
Feinberg 1990, pp. 23–5.
Suicide and suicide assistance as supposed to violate the “sanctity of human life” (SHL). I take the SHL doctrine to be that it is always wrong intentionally to kill or facilitate the death of any innocent human being, whether or not the person consents and whether or not she is better off dead. While some violations of SHL are forbidden by the harm principle, others (e.g. assisting the suicide of a terminally ill person who autonomously requests the assistance) if wrong have to be free floating evils.
Ripstein 2006.
Gardner and Shute 2000. Though they present “pure rape” as an example of harmless grievance, they do not think its criminalization poses a problem for defenders of the harm principle.
See Feinberg 1984, chapter one.
Ripstein 2006, p. 220.
The case of Mario shows that the first, “negative” half of legal moralism has to be construed in a similar way, that is, as permitting criminalization of a type even when some tokens of it are not culpable wrongs. Duff supposes otherwise; he would say that Mario is guilty of the mala in se of “civic arrogance,” that is, of supposing that he knows that he is among the minority whose speedy driving is not excessively risky. Douglas Husak ably criticizes Duff’s view (Husak 2008, pp. 103–119). Husak’s own view (as well as the libertarian’s version of the harm principle) seems to imply (absurdly, I would have thought) that enforcement of the law against Mario is wrong.
The “principle of legality” permits punishment only with “due process,” that is, a fair trial with a finding of “guilty” for having violated a prior, public, and sufficiently unambiguous law.
This is why Gardner and Shute think that the harm principle permits the criminalization of “pure rape.” For reasons he does not explain, John Stanton-Ife (Stanton-Ife 2010) finds this defense of the harm principle feeble.
Consider Feinberg’s example of the man on a bus who publicly defecates into clear plastic bags that he then seals and properly disposes of. He is no more a danger to public health than the man who walks his dog in the park and cleans up after it.
Alexander 2008, p. 139.
George 1999, p. 307.
As Michael Moore has noted, “it trivializes morality to think that it obligates us about what organ we insert into what orifice of what gender of what species.” (Moore 1997, p. 756).
See the conclusion of Dworkin G. 1999.
Moore 1997, p. 646.
Feinberg 1973, p. 41.
Feinberg supposes that they are harmed when alive inasmuch as their preferences about their posthumous treatment are frustrated (though of course they don’t know it); see Feinberg 1984, pp. 92–3. This is another case (in addition to Ripstein’s trespass and the “pure rape”) where hedonism cannot while preferentism can account for the existence of harm.
Feinberg 1992, p. 53.
Richard J. Arneson endorsed this strategy as the best way to defend the ban on gladiatorial entertainments. See Arneson 1990.
Ronald Dworkin (who labels the two conceptions the “incrementally” valuable and the “sacred” or “inviolable”) says, “the hallmark of the sacred as distinct from the incrementally valuable is that the sacred is intrinsically valuable because—and therefore only once—it exists.” (Dworkin 1993, pp. 73–4).
Note that the distinction between the two kinds of intrinsic value does not coincide with the distinction between agent relative and agent neutral value. It is possible to hold that some teleological values are agent relative while some non-teleological ones are agent neutral. On an agent neutral view of the value of respecting human life, one ought to desecrate a corpse if it is the only way to prevent many more acts of corpse desecration by others. Admittedly this sort of view is unusual. It is more common to regard the duty to respect what has non-teleological value as an agent relative value, as Kant did.
See Steinbock 2007.
An example of “triviality” is provided by the woman who says, “maybe I should be on the pill, but it’s so much trouble! I’d rather just take my chances and if I get pregnant use abortion as my last resort method of birth control.” Pro-lifers believe that the immorality of such an attitude stems from its indifference to wronging the fetus, which they suppose has a right to life. A duty to respect human life explains why liberal pro-choicers who deny any fetal right to life can find the attitude impersonally immoral.
Another version of the weaker, distributive thesis is that punishment should be proportionate to not just the gravity of the wrong but also the depravity of the offender. According to it the unrepentant thief who stole $100 from personal greed deserves a harsher punishment than the repentant thief who stole the same amount of money in order to aid the needy. If the wrongful harm in the two cases is the same yet this distributive thesis is correct and the judge should go a little easier on the second thief in sentencing, then it may seem to follow that criminalization and punishment ought not aim solely at the enforcement of “grievance morality.” Devlin defended this inference in his debate with Hart (Devlin 1965, p. 130), and Hart responded that it confuses the question of what should be criminalized with the separate question of how severely any criminal act should be punished (Hart 1963, pp. 36-7). Feinberg defended Hart’s reply (Feinberg 1987, esp. 253–5), while Jeffrie G. Murphy argued that the Hart-Feinberg reply is unsuccessful (Murphy 1995, esp. p. 92). In my view while this distributive thesis may entail a sort of “legal moralism,” it is irrelevant to the dispute between defenders of the harm principle and “legal moralism” defined in terms of i) and ii) at the beginning of this paper, because it implies nothing about which culpable wrongs are properly criminalized in the first place. Hart’s objection to Devlin’s inference was correct.
Moore, G. E. 1962, p. 214.
Murphy 1985. Of course not even Locke accepts a purely consequentialist rationale for criminalization and punishment. One of the “inconveniences” of the state of nature is that each has the authority to punish others who violate his natural rights, and “men being partial to themselves, passion and revenge is apt to carry them too far” (P. 125, Second Treatise). Weak retributivism is the rationale for setting up “a known and indifferent judge” to remedy this inconvenience.
Moore 2009 p. 43.
Those who believe that causing the extinction of some insect or plant species is a free-floating wrong because biodiversity is an important intrinsic value must reject this claim. According to them most of the evil lies in the act’s consequences (the species extinctions) rather than in the anthropocentric hubris of the humans responsible for the extinctions. To suppose that the evil resides primarily in the failure of the humans to appreciate the value of other species is, on their view, just another form of such hubris.
Hart 1963, p. 57.
George 1995, p. 44.
The term “the right” as it occurs in this formula has to be understood as encompassing personal grievances only, with questions about free-floating wrongs getting pushed into the domain of “the good.” Thus, whether SHL is true and suicide is wrong even if it benefits oneself and doesn’t wrong others is a question about “the good.”
See Dworkin R. 1997.
I take it that the justificatory liberal disagrees with this claim. To say that a defense of liberal policies requires a “bracketing” of questions about the good (as the justificatory liberal does), is different from saying that liberal policies are defensible no matter which account of the good is true (Feinberg’s claim).
Feinberg deems it acceptable soft paternalism to require as a condition of licensing that all motorcyclists attend seminars informing them of the dangers of riding helmetless. The requirement restricts the liberty of those motorcyclists who are already well informed about the risks, do not want to wear a helmet, and do not want to attend the seminar. Feinberg must say that the restriction does not violate their right to autonomy because it is for the increased welfare and autonomy of others (the many uninformed motorcyclists).
Feinberg 1984, pp. 23–4.
George denies that there is any right to personal autonomy; a morals law that targets a genuine immorality is objectionable only if its prudential costs are too high. See George 1995, chapter four. George criticizes Jeremy Waldon’s defense of a “right to do wrong” for confusing the two objections.
See Feinberg’s “animadversions on Kant” in Feinberg 1986, pp. 94–97.
Feinberg 1986, p. 94.
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Scoccia, D. In Defense of “Pure” Legal Moralism. Criminal Law, Philosophy 7, 513–530 (2013). https://doi.org/10.1007/s11572-013-9239-4
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DOI: https://doi.org/10.1007/s11572-013-9239-4