Abstract
Against Patrick Devlin, H. L. A. Hart rejects the enforcement of morals as such. Hart defends an expanded version of John Stuart Mill’s harm principle, but this expanded version is no more defensible than Mill’s original claim. Hart’s discussion fails to clarify what is really at stake in controversies regarding the moral acceptability of criminal prohibition of such activities as suicide and assisted suicide, recreational drug use, prostitution, and so on. Regarding the enforcement of morals as such, we should acknowledge that the jury is still out.
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H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963).
James Fitzjames Stephens, Liberty, Equality, Fraternity (London, 1873); Lord Patrick Devlin, “Morals and the Criminal Law,” reprinted in Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965), 1–25; John Stuart Mill, On Liberty, Elizabeth Rapaport ed. (Indianapolis: Hackett Publishing, 1978). Originally published 1859. Also available at www.utilitarian.net/jsmill/.
“Report of the Committee on Homosexual Offenses and Prostitution,” section 13, as cited in Hart, Law Liberty, and Morality, 14.
Devlin, “Morals and the Criminal Law.” The first quote is from 17, the second from 22.
Mill, On Liberty, 4 and 9 (chapter 1, paragraphs 5 and 9).
Hart, Law, Liberty, and Morality, 17–24.
Hart discusses the legitimacy of criminal prohibition of offensive conduct such as public indecency in Law, Liberty, and Morality, 38–48. He notes that one might accept criminal prohibition of offense while rejecting the enforcement of morals as such. On the need to include offense to others as a separate and distinct ground for criminal prohibition in addition to harm to others, see Joel Feinberg, The Moral Limits of the Criminal Law, vol. 2, Offense to Others (New York and Oxford: Oxford University Press, 1985).
In On Liberty Mill affirms two different ideas: (1) no restriction of liberty except to prevent harm to nonconsenting others and (2) to restriction of liberty unless the conduct being restricted imposes harm or risk of harm on nonconsenting others. These ideas are rivals, with different and opposed implications for the determination of what restrictions of liberty are morally forbidden. Mill does not fully acknowledge the conflict between 1 and 2 and does not clearly opt for one or the other of the rivals.
Joel Feinberg, The Moral Limits of the Criminal Law, vol. 4, Harmless Wrongdoing New York and Oxford: Oxford University Press, 1988, 311–316. Feinberg’s magisterial work advances our understanding of every topic touched upon in this essay.
On the concepts of exploitation and mutually beneficial exploitation, see Feinberg, Harmless Wrongdoing, chapters 31 and 32.
One might resist the claim in the text on the ground that sometimes we have a right to do wrong (so long as we don’t there by harm others). I disagree, but the issue is open. I thank Massimo Renzo for helpful criticism of my claim here.
Gerald Dworkin, “Devlin Was Right: Law and the Enforcement of Morality,” William and Mary Law Review 40 (1999), 927–946. My views on the enforcement of morals as such (legal moralism) owe a lot to Dworkin’s insights.
Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), chapter 16.
Nils Holtug, Persons, Interests, and Justice (Oxford and New York: Oxford University Press, 2010), 184–188.
Hart, Law, Liberty, and Morality, 33.
For argument along this line, see John Finnis, Natural Law and Natural Right (Oxford and New York: Oxford University Press, 1980); also Finnis, “Marriage: A Basic and Exigent Good,” The Monist 91 (2008), 396–414; also Mark C. Murphy, Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001).
Douglas Husak, “For Drug Legalization,” in Douglas Husak and Peter de Marneffe, The Legalization of Drugs—For and Against (Cambridge: Cambridge University Press, 2005), 3–105. In his contribution to this same volume (“Against Drug Legalization,” 109–198) de Marneffe mounts a paternalistic case for attaching mild criminal law penalties to use and consumption of certain recreational drugs that are dangerous or otherwise harmful to their users.
Derek Parfit, “Equality or Priority?”, reprinted in Matthew Clayton and Andrew Williams, eds., The Ideal of Equality (Basingstoke, Hampshire: Palgrave Macmillan, 2002), 81–125.
H. L. A. Hart, “Prolegomenon to the Principles of Punishment,” reprinted in Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford and New York: Oxford University Press, 1968), 1–27.
Mill, On Liberty, 10.
I argue for a duty to self with this shape, as part of an argument for the moral acceptability of hard paternalism, in my “Joel Feinberg and the Justification of Hard Paternalism,” Legal Theory 11 (2005), 259–284. See also Arneson, “Paternalism, Utility, and Fairness,” reprinted in Gerald Dworkin, ed., Mill’s ‘On Liberty’: Critical Essays (Lanham, Maryland: Rowman and Littlefield, 1997).
Mill, On Liberty, 11 (chapter 1, paragraph 12). Mill ends up affirming that the harm principle rules out restricting the individual’s liberty to engage in conduct that “neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself” (On Liberty, 80, chapter 4, paragraph 11).
See Arthur Ripstein, “Beyond the Harm Principle,” Philosophy and Public Affairs 34 (2006), 215–245; also Colin Bird, “Harm versus Sovereignty: A Reply to Ripstein,” Philosophy and Public Affairs 35 (2007), 179–194; also Ripstein, “Legal Moralism and the Harm Principle: A Rejoinder,” Philosophy and Public Affairs 35 (2007), 195–201.
This example receives a thorough treatment in Feinberg, Harmless Wrongdoing, 328–331.
For a thorough treatment of the liberal legitimacy idea and what it implies, see Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011).
See Richard Arneson, “Neutrality and Political Liberalism,” forthcoming; also Arneson, “Liberal Neutrality on the Good: An Autopsy,” in George Klosko and Steven Wall, eds., Perfection and Neutrality: Essays in Liberal Theory (Lanham, Maryland: Rowman and Littlefield, 2003, 191–218.
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Arneson, R.J. The Enforcement of Morals Revisited. Criminal Law, Philosophy 7, 435–454 (2013). https://doi.org/10.1007/s11572-013-9240-y
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DOI: https://doi.org/10.1007/s11572-013-9240-y