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Harm, Offense, and Morality

Published online by Cambridge University Press:  09 June 2015

Larry Alexander
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Extract

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 2 , July 1994 , pp. 199 - 216
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1994

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References

1. Feinberg, Joel vol. 1, Harm to Others (New York: Oxford University Press, 1984);Google Scholar vol. 2, Offense to Others (New York: Oxford University Press, 1985); vol. 3, Harm to Self (New York: Oxford University Press, 1986); vol. 4, Harmless Wrongdoing (New York: Oxford University Press, 1988).

2. Mill, John Stuart On Liberty (1859).Google Scholar

3. What Feinberg calls the Harm Principle he formulates as follows:

It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values. Harmless Wrongdoing, supra note 1 at xix.

4. What Feinberg calls the Offense Principle he formulates as follows:

It is always a good reason in support of a proposed criminal prohibition that it is necessary to prevent serious offense to persons other than the actor and would be an effective means to that end if enacted. Ibid, at xix.

5. Feinberg rejects Legal Paternalism, which he formulates as follows:

It is always a good reason in support of a prohibition that it is necessary to prevent harm…to the actor himself. Ibid, at xix.

6. Feinberg rejects Legal Moralism, which he formulates as follows:

…it is always a good reason in support of criminalization that it prevents non-grievance evils or harmless immoralities. Ibid, at 324 [emphasis removed].

7. See Ellis, Anthony “Offense and the Liberal Conception of Law” (1984) 13 Phil. … Publ. Affairs 3 at 6–7 [hereinafter “Liberal Conception of Law”].Google Scholar

8. See Harm to Others, supra note 1 at 18–19.

9. Some “perfectionist” liberals have taken the latter tack. See e.g., Galston, William Justice and the Human Good (Chicago: University of Chicago Press, 1980);Google Scholar Haksar, Vinit Equality, Liberty, and Perfectionism (New York: Oxford University Press, 1979);Google Scholar Raz, Joseph The Morality of Freedom (Oxford: Oxford University Press, 1986) at 367–429.Google Scholar

10. See Harmless Wrongdoing, supra note 1 at 12–14 and 173–75; George, Robert P. “Moralistic Liberalism and Legal Moralism” (1990) 88 Michigan L. Rev. 1415 at 1419.Google Scholar

11. Harm to Others, supra note 1 at 215.

12. Justice and the Hitman Good, supra note 9 at 34 and 60.

13. Harm to Others, supra note I at 205–06 and 215.

14. Ibid. at 215–16.

15. Ibid. at 215–16. There are several other qualifications Feinberg attaches to the Harm Principle, including those dealing with the treatment of trivial harms, aggregative harms, risks of harm, etc.

16. Offense to Others, supra note 1 at 2.

17. Dalton, Harlon L. “‘Disgust’ and Punishment” (1987) 96 Yale L.J. 881 at 888–89 [footnotes omitted].Google Scholar

18. Harm to Others, supra note 1 at 49–50.

19. Ibid. at 49; Offense to Others, supra note 1 at 3.

20. Offense to Others, supra note 1 at 10–13.

21. Harm to Others, supra note 1 at 215; Offense to Others, supra note 1 at 1–2.

22. Harm to Others, supra note 1 at 109–14.

23. Offense to Others, supra note 1 at 67–69.

24. Harm to Self, supra note 1.

25. Harmless Wrongdoing, supra note 1.

26. Ibid. at 324.

27. Ibid. at 309. See also “Moralistic Liberalism and Legal Moralism”, supra note 10 at 1418–19.

28. Harmless Wrongdoing, supra note 1 at 312–13.

29. Ackerman, Bruce A. Social Justice in the Liberal State (New Haven: Yale University Press, 1980).Google Scholar

30. Dworkin, Ronald “Liberalism” in Stuart Hampshire, ed., Public and Private Morality (New York: Cambridge University Press, 1978) 113.CrossRefGoogle Scholar

31. See Alexander, Larry “Understanding Constitutional Rights in a World of Optional Baselines” (1989) 26 San Diego L. Rev. 175 Google Scholar [hereinafter “Understanding Constitutional Rights”). Many liberals, however, do believe such a line can be drawn. See e.g., The Morality of Freedom, supra note 9 at 419–29.

32. Harm to Others, supra note 1 at 215 and 205–06.

33. See Amdur, Robert “Harm, Offense, and the Limits of Liberty” (1985) 98 Harvard L. Rev. 1946 at 1949.Google Scholar

34. Harmless Wrongdoing, supra note 1 at 154–55.

35. See Edmundson, William A. “Liberalism, Legal Decisionmaking, and Morality ‘as such’” (1990) 10 Oxford J. of Legal Stud. 505 at 517–20.Google Scholar

36. And what if B’s greater remorse comes not from having harmed but from having transgressed God’s laws? If we still count his remorse as grounds for mitigating his punishment, have we moved into Legal Moralism? See ibid. at 517–20.

37. Kristol, Irving , “Pornography, Obscenity, and the Case for Censorship” The New York Times Magazine (28 March 1971).Google Scholar

38. Harmless Wrongdoing, supra note 1 at 130–31.

39. Ibid. at 326–27. Parfit’s example involves a couple who conceive a child they know will be defective when, by conceiving at another time, they would have conceived a normal child. See Parfit, Derek “On Doing the Best for Our Children,” in Bayles, Michael ed., Ethics and Population (Cambridge, Mass.: Schenkman, 1976) 100.Google Scholar

40. Harmless Wrongdoing, supra note 1 at 326–27.

41. Offense to Others, supra note 1 at 35.

42. Ibid. at 35–36.

43. Ibid. at 37–38.

44. See Ibid. at 11–13. Among his examples are public homosexual acts, public desecration of religious and patriotic symbols, and public racial, sexual, and ethnic insults.

45. Ibid. at 61–71.

46. Ibid. at 67–68.

47. Ibid. at 67–68.

48. Ibid. at 67–69 [citations omitted]. Permission to use granted by Oxford University Press. See also ibid. at 94; Bayles, Michael D. Book Review (1986) 5 L. & Phil. 113 at 114–15.Google Scholar

49. Offense to Others, supra note 1 at 57–58.

50. Feinberg does make an exception to the bare knowledge limitation on offense for cases where the private conduct is offensive to a specific person, for example, the mutilation of her spouse’s corpse. Ibid. at 69 and 94.

51. See also “‘Disgust’ and Punishment” supra note 17 at 894.

Feinberg doesn’t deny that one can have rights against being subject to risks of harm in addition to rights not be harmed. See Harm to Others, supra note 1 at 191 and 216. See also Schroeder, Christopher “Rights Against Risks” (1986) 86 Colum. L. Rev. 495.Google Scholar But see Thomson, Judith Jarvis The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990) at 243–47.Google Scholar The arguments for criminalization of conduct that unreasonably risks harm equally support criminalizing conduct that unreasonably risks offense. Indeed, so long as criminal statutes that proscribe offensive conduct do not require proof that anyone was actually offended on the occasion in question, those statutes are most appropriately thought of as punishing the creation of an unreasonable risk of offense. In any event, offense due to knowledge cannot be distinguished in principle from offense due to perception when assessed in terms of risk of offending versus actually offending. Both the actor who engages in offensive conduct in public and the actor who engages in offensive conduct in private only risk offending others. Whether others are offended, whether by direct perception of the conduct or by learning of it, is beyond their control once they act. At most one can say that immoral conduct in public in general creates a higher risk of being perceived and offending than the risk immoral conduct in private creates of being learned about and offending. That is a difference in degree but not in kind.

One other possible distinction between offensive conduct that is directly perceived and offensive conduct that is merely known about can be disposed of in short order. It may be thought that offensive conduct that occurs in private and then is learned about either requires the aid of a third party who relates the evidence of the conduct to the offended party or requires the offended party himself to engage in snooping activities. In the first case, the argument continues, it is the intermeddler who wrongs the offended party, not the actor who engaged in the offensive conduct. In the second case, it is the victim himself who is to blame for his offense.

Although there surely are cases where the victim is at least partly to blame for his own offense (because he engaged in unjustifiable snooping), there will be many cases when the private conduct offends without the victim’s being blameworthy. Some of these cases will involve culpable acts of intermeddlers—gossiping snoops—but some will not. And even if the offense depends on gossiping snoops, that fact does not itself relieve the actor of responsibility for the offense caused by his conduct. Often conduct is punished because it risks harm through intervening culpable acts of others.

In short, immoral conduct in private no less than immoral conduct in public always risks offending others, and those who engage in it are at least partially responsible for resulting offense. Even if the risk of offense is small, the immorality of the conduct greatly diminishes or perhaps entirely eliminates the actor’s interest in engaging in it, quite possibly tipping the balance in favor of prohibition.

52. Other conduct that Feinberg’s principles might put beyond the reach of criminal law might include the replacing of forests with plastic trees that no one can distinguish from living trees and that do not otherwise harm the environment, or the elimination of species when their elimination causes only bare knowledge offense. See Alexander, Larry “Liberalism as Neutral Dialogue: Man and Manna in the Liberal State” (1981) 28 U.C.L.A. L. Rev. 816 at 846–47;Google Scholar Tribe, Laurence “Ways Not to Think About Plastic Trees: New Foundations for Environmental Law” (1974) 83 Yale L.J. 1315.Google Scholar See also “‘Disgust’ and Punishment”, supra note 17 at 892, n. 56.

53. Rejecting the distinction between perceived and merely known immoral conduct does not actually collapse the Offense Principle into Legal Moralism because the grounds for prohibiting immoral conduct under those principles differ: Under the Offense Principle, immoral conduct is prohibited because it offends; under Legal Moralism, it is prohibited because it is immoral. Nonetheless, conduct that Legal Moralism would prohibit will almost always be subject to prohibition under the Offense Principle. I owe the point of this footnote to comments by Michael Moore.

54. See Offense to Others, supra note 1 at 57–59.

55. Ibid. at 16–20.

56. See “‘Disgust’ and Punishment”, supra note 17 at 901–05; “Liberal Conception of Law”, supra note 7 at 11–12.

57. Harmless Wrongdoing, supra note 1 at 15–16.

58. “Liberal Conception of Law”, supra note 7 at 11–12; “Moralistic Liberalism and Legal Moralism”, supra note 10 at 1422.

59. See “Liberal Conception of Law”, supra note 7 at 14.

60. See also ibid. at 15.

61. See also ibid. at 11–12.

62. See also “‘Disgust’ and Punishment”, supra note 17 at 906–09.

63. See “Moralistic Liberalism and Legal Moralism”, supra note 10 at 1418.

64. See e.g., ibid. at 1418–19; Greenawalt, Kent Religious Convictions and Political Choice (New York: Oxford University Press, 1988) at 49–84;Google Scholar Nagel, Thomas “Moral Conflict and Political Legitimacy” (1987) 16 Phil. & Publ. Affairs 218;Google Scholar Rawls, John “The Domain of the Political and Overlapping Consensus” (1989) 64 N.Y.U. L. Rev. 233.Google Scholar For an attack on this view, see Raz, Joseph “Facing Diversity: The Case of Epistemic Abstinence” (1990) 19 Phil. & Publ. Affairs 3 [hereinafter “Facing Diversity”].Google Scholar

65. See Alexander, Larry “Liberalism, Religion, and the Unity of Epistemology” (1993) 30 San Diego L. Rev. 763;Google Scholar “Facing Diversity”, supra note 64.

66. See “Understanding Constitutional Rights”, supra note 31 at 184–87.

67. See supra note 9. See also Postema, Gerald “Public Faces-Private Faces: Liberalism and the Enforcement of Morality” in Musschenga, A.W. et al., eds, Morality, Worldview, and Law (Assen/Maastricht: Van Gorcum, 1992) 153ff.Google Scholar

68. See Rawls, John A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971);Google Scholar Dworkin, Ronald “What is Equality? Part 2: Equality of Resources” (1981) 10 Phil. & Publ. Affairs 283;Google Scholar Social Justice in the Liberal State, supra note 29; Arneson, Richard “Neutrality and Utility” (1990) 20 Canadian Journal of Philosophy 215.Google Scholar A fourth conception of liberalism is just welfarism purified of false beliefs regarding welfare. See e.g., Arneson, Richard “Liberalism, Freedom, and Community” (1990) 100 Ethics 368 at 379–82.Google Scholar Arneson believes that so long as welfarism doesn’t allow consideration of non-welfarist moral views and anti-welfarist preferences, then, given correct factual views, it will produce fairly liberal results, even if it considers arguments about how others’ norms affect one’s welfare.

69. Cf. The Realm of Rights, supra note 51 at 253–57 (rejecting the proposition that one can have valid claims not to be caused belief-mediated distress). But see also ibid. at 354–56. Thomson, by the way, holds that we generally find moral indignation to be a pleasurable, not a distressful, mental state, though she doesn’t deny that other belief-mediated mental states can be distressful, ibid. at 251. For a position similar to Thomson’s on belief-mediated distress, see Epstein, Richard “Two Conceptions of Civil Rights” (1990) 8 Soc. Phil. & Policy 39 at 57–58.Google Scholar

70. See supra section III. B.3. Feinberg’s Offense Principle departs from individualism, not only because most of the types of offense that he would criminalize consist of violations of social norms, but also because such norm violations must be potentially offensive to a large number of people: Offense to Others, supra note 1 at 35. If violation of a social norm would be seriously offensive to only a small percentage of people who observe or learn about the violation, then the Offense Principle does not legitimize punishment of the violation. This restriction leads to one of the strongest arguments for Legal Moralism that Feinberg grapples with, the argument that permitted immoralities will undermine standards of offense to the detriment of those who remain offended: Feinberg, Joel Harmless Wrongdoing, supra note 1 at 69–70.Google Scholar The social as opposed to individualistic basis of Feinberg’s Offense Principle is quite apparent in his rejection of this argument for Legal Moralism, but his arguments on this point fit poorly into his generally individualistic defense of liberalism.

71. See supra note 52.