Skip to main content


Log in

Legal Moralism, Interests and Preferences: Alexander on Aesthetic Regulation

  • Published:
Philosophia Aims and scope Submit manuscript


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.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others


  1. This is legal moralism in the narrow or strict sense as defined by Feinberg. See Feinberg (1990).

  2. See Devlin (1965) and George (1993).

  3. See Feinberg (1990).

  4. 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.

  5. 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)

  6. See for example Elliot (1982).

  7. For a good overview of some of this research, see Lambin (2012).

  8. Lambin makes a similar point about arguments seeking to persuade people to adopt a more sustainable lifestyle (Lambin 2012).

  9. Thanks to an anonymous reviewer for this journal for suggesting that I discuss these cases.

  10. Alexander’s example of such a case involves the destruction of the surface of the moon by robot mining (2010).

  11. 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.

  12. See Pogrebin (2012)


Download references


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.

Author information

Authors and Affiliations


Corresponding author

Correspondence to Jonathan Peterson.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Peterson, J. Legal Moralism, Interests and Preferences: Alexander on Aesthetic Regulation. Philosophia 43, 485–498 (2015).

Download citation

  • Received:

  • Revised:

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: