Legal Moralism, Interests and Preferences: Alexander on Aesthetic Regulation
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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.
KeywordsLiberalism Harm Legal moralism Interests
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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