Abstract
Gerald Dworkin’s overlooked defense of legal moralism attempts to undermine the traditional liberal case for a principled distinction between behavior that is immoral and criminal and behavior that is immoral but not criminal. According to Dworkin, his argument for legal moralism “depends upon a plausible idea of what making moral judgments involves.” The idea Dworkin has in mind here is a metaethical principle that many have connected to morality/reasons internalism. I agree with Dworkin that this is a plausible principle, but I argue that some of the best reasons for accepting it actually work against his enforcement thesis. I propose a principled distinction between the immoral-and-criminal and the immoral-but-not-criminal, and argue that a principle at least very much like it must be correct if the metaethical principle Dworkin avows is correct.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
See, for example, the special Symposium issue on Law, Liberty and Morality: 50 Years On of Criminal Law and Philosophy.
Liberal perfectionists sometimes argue for the legitimacy of the state using legal instruments to promote certain values. Joseph Raz’s principle of autonomy, for example, “permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones” (Raz 1986, p. 417). Yet Raz disavows legal moralism in favor of a (peculiar sort of) harm principle. Direct support of Dworkin’s opposition to Hart and Feinberg is more recent. See, especially, Richard Arneson who writes, “My views on the enforcement of morals as such (legal moralism) owe a lot to Dworkin’s insights” (2013, p. 441, n. 12).
Or, more generally, between moral obligation and accountability. Stephen Darwall presents morality/reasons internalism in Darwall (1997, p. 306). He connects this view to the metaethical principle Dworkin invokes in Darwall (2006a, pp. 276–277), Darwall (2006b, pp. 26–27) and Darwall (2007, pp. 290–292). Others who make similar arguments include Skorupski (1999, pp. 42–43) and Portmore (2011, pp. 43–44).
Dworkin (1999, p. 946). If debates about the morality of homosexual sex are passé, then substitute some other more controversial contemporary issue.
Mill [(1859) 2004, p. 10]. Though just “one very simple principle,” interpretations of it vary. Daniel Jacobsen canvasses many of them and presents a novel understanding of Mill’s “Doctrine of Liberty” in Jacobsen 2000.
Dworkin has attempted to raise problems for the version Rawls defended in Theory of Justice in Dworkin (1974).
I have been presenting Mill’s harm principle as an early version of a public justification test for the legitimacy of legal coercion, which focused exclusively on harm-based reasons. Since some reasons that might plausibly be public in the requisite sense are not really harm-based, and some harm-based reasons might not really be public in the requisite sense, we should introduce the modification that follows. However, an anonymous referee suggests that Mill’s harm principle is more a substantive constraint on the law’s content rather than a test of public reasoning. I don’t object to this interpretation of Mill, but since it is no less susceptible to Dworkin’s objection, we should introduce the modification that follows.
Alternatively, moralistic considerations that are considerations (or reasons) distinctive to some group will fail the test of public justification.
Mill ([1859] 2004, p. 10). Emphasis added.
Dworkin (1999, p. 928, n. 8). Emphasis added.
Gaus argues for this in Gaus (2009b).
References
Arneson, R. (2010). Against freedom of conscience. San Diego Law Review, 47(4), 1015–1040.
Arneson, R. (2013). The enforcement of morals revisited. Criminal Law and Philosophy, 7(3), 435–454.
Arneson, R. (2014). Rejecting the order of public reason. Philosophical Studies, 170(3), 537–544.
Bird, C. (2014). Coercion and public reason. Politics, Philosophy and Economics, 13(3), 189–214.
Copp, D. (2007). Morality in a natural world. Cambridge, NY: Cambridge University Press.
Darwall, S. (1997). Reasons, motives and the demands of morality: An introduction. In S. Darwall, A. Gibbard & P. Railton (Eds.), Moral discourse and practice (pp. 305–312). Oxford, NY: Oxford University Press.
Darwall, S. (2006a). The value of autonomy and autonomy of the will. Ethics, 116, 263–284.
Darwall, S. (2006b). The second-person standpoint: morality, respect, and accountability. Cambridge: Harvard.
Darwall, S. (2007). Morality and practical reason: A Kantian approach. In D. Copp (Ed.), The Oxford handbook of ethical theory (pp. 282–320). Oxford, NY: Oxford University Press.
Devlin, P. (1965). The enforcement of morals. Oxford: Oxford University Press.
Dworkin, G. (1974). Non-neutral principles. The journal of philosophy, 71(14), 491–506.
Dworkin, G. (1990). Equal respect and the enforcement of morality. Social Philosophy and Policy, 7(2), 180–193.
Dworkin, G. (1999). Devlin was right: Law and the enforcement of morality. William and Mary Law Review, 40, 927–946.
Feinberg, J. (1987a). The moral limits of the criminal law: Harm to others. Oxford: Oxford University Press.
Feinberg, J. (1987b). Some unswept debris from the Hart-Devlin debate. Synthese, 72(2), 249–275.
Feinberg, J. (1988a). The moral limits of the criminal law: Harmless wrongdoing. Oxford: Oxford University Press.
Feinberg, J. (1988b). Liberalism, community, and tradition. Tikkun, 3(3), 38–41.
Foot, P. (1972). Morality as a system of hypothetical imperatives. The Philosophical Review, 81(3), 305–316.
Gaus, G. (2009a). The moral foundations of liberal neutrality. In T. Christiano & J. Christman (Eds.), Contemporary debates in political philosophy. Oxford: Wiley.
Gaus, G. (2009b). The place of religious belief in public reason liberalism. In M. Dimovia-Cokson & P. Stirk (Eds.), Multiculturalism and moral conflict. New York: Routledge.
Gaus, G. (2011). The order of public reason. Cambridge, NY: Cambridge University Press.
Gaus, G. (2012). Sectarianism without perfection? Quong’s political liberalism. Philosophy and Public Issues, 2(1), 7–15.
Hart, H. L. A. (1963). Law, liberty and morality. Stanford: Stanford University Press.
Jacobsen, D. (2000). Mill on liberty, speech, and the free society. Philosophy & Public Affairs, 29(3), 276–309.
Joyce, R. (2005). The evolution of morality. Massachusetts: MIT.
Larmore, C. (1996). The morals of modernity. Cambridge, NY: Cambridge University Press.
Mill, J. S. (1963). Collected works of John Stuart Mill. In J. M. Robson (Ed.), The subjection of women (Vol. 21). Toronto: Routledge.
Mill, J. S. ([1861] 1979). Utilitarianism. Indianapolis: Hackett.
Mill, J. S. ([1859] 2004). On liberty. New York: Barnes & Noble Books.
Portmore, D. (2011). Commonsense consequentialism. Oxford: Oxford University Press.
Quong, J. (2014). On the idea of public reason. In D. Reidy & J. Mandle (Eds.), A companion to Rawls. Oxford: Oxford University Press.
Rawls, J. (2005). Political liberalism. Columbia, NY: Columbia University Press.
Raz, J. (1986). The morality of freedom. Oxford: Oxford University Press.
Scanlon, T. (1998). What we owe to each other. Cambridge, MA: Harvard.
Skorupski, J. (1999). The domain of reasons. Oxford: Oxford University Press.
Strawson, P. F. (1961). Social morality and individual ideals. Philosophy, 36(136), 1–17.
Symposium on Law, Liberty and Morality: Fifty Years On (2013). Criminal Law and Philosophy, 7(3), 417–548.
Acknowledgments
I owe thanks to Paul Billingham, Russell DiSilvestro and Gerald Dworkin for comments and discussion on this paper. A Summer 2014 grant from the California State University, Sacramento Provost’s Research Incentive Fund supported my completion of the project.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Swan, K. Legal punishment of immorality: once more into the breach. Philos Stud 174, 983–1000 (2017). https://doi.org/10.1007/s11098-016-0727-y
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11098-016-0727-y