Four Liberty-Limiting Principles and Justifications for Law
From Joel Feinberg, “Hard Cases for the Harm Principle”
1. Questions addressed:
a. For what reasons may society limit individual liberty?
b. What is the legitimate role of government?
c. When is legal coercion permissible?
d. For what purposes may law be made?
2. One: Harm principle: Legitimate to make laws to prevent harm to others (and only to prevent that harm)
a. John Stuart Mill’s statement of harm principle in On Liberty (1859):
“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good is not a sufficient warrant (Mill here rejects paternalism). He cannot rightfully be compelled to do or forbear because . . . in the opinion of others, to do so would be wise or even right (Mill here rejects moralism).”
b. What is harm?
i. It should include significant risk of harm
ii. How to distinguish harm from offense
(1) Harm need not be physical; psychological harm can be severe
iii. How to distinguish harm from wrong, distinguish harming others from wronging them
(1) One can harm others without wronging them
(2) One can wrong others without harming them
c. Feinberg (and everyone) accepts that preventing people from harming others is a good reason to make a law
d. Question is: Is it the only good reason?
i. Feinberg thinks not (hence “hard cases for the harm principle”)
3. Two: Paternalism principle (legal paternalism): Legitimate to make laws to prevent harm to self (or to make you do what is good for you: called “extreme paternalism”)
a. E.g., Motorcycle helmets, suicide prohibition, use of heroine, becoming a second wife--all these prohibitions might be justified on paternalistic grounds
b. Arguments for paternalism:
i. State often knows better than you do what is good for you
(1) E.g., Only licensed physicians have the knowledge to safely dispense prescription drugs
ii. Extreme examples suggesting need some paternalistic laws: Can’t allow bodily dismemberment or selling oneself into slavery or voluntary gladiator fights to the death
c. Arguments against paternalism:
i. State should not treat competent adults like children
ii. How prevent slippery slope into banning whiskey, cigarettes, fried foods, rock climbing (all of which involve harm or risk of harm to self)?
d. Feinberg accepts “weak paternalism”
i. Preventing self harm is only permissible if the behavior is “substantially non-voluntary”
(1) And thus there really is no violation of autonomy
ii. Behavior is non-voluntary if it is due to misinformation, neurosis, clouded judgment,
iii. Behavior can count as non-voluntary if it involves risk so unreasonable that one can presume behavior is non-voluntary
(1) In these cases, Feinberg argues it is permissible to stop the person until voluntariness is demonstrated
(2) Goal is not to judge the wisdom/worthwhileness of the person’s activity, but to determine if it is voluntary
iv. Consider person planning to commit suicide
4. Three: Moralism principle (legal moralism): Legitimate to make laws to prevent immoral behavior as such, that is, to prevent harmless immoralities
a. Are there immoral behaviors which are harmless?
i. E.g., “victimless crimes” committed in private by consenting adults
ii. Victimless crimes might include: gambling, sodomy & other “sex offenses,” flag desecration, mistreating corpses, kiddy porn novels
b. Arguments for moralism:
i. J.F. Stephen: “There are acts of wickedness so gross and outrageous that (protection of others apart), they must be prevented and ... punished with extreme severity”
ii. These laws are good because they punish sin, make people moral, make the universe a better place (by preventing and/or punishing such behavior)
c. Arguments against moralism:
i. Invasion of privacy in order to enforce
ii. Threat of tyranny of majority
(1) Majority forces the minority to live as it (the majority) believes is the right way to live
(a) Example: Christian majority believes immoral not to go to church and so passes law requiring this to make the world a better place
d. Feinberg opposes moralism
i. Although free floating evils count (there are “harmless immoralities” the universe would be better w/o),
ii. The good of preventing them does not outweigh value of autonomy and the evils involved in enforcing morality behind closed doors
5. Four: Offense principle: Legitimate to make laws to prevent offense to others (offense that is not harmful)
a. Some behavior is offensive but not harmful
b. E.g., obscenity (obscene pictures/books, curses), loud noises, bad smells, public nudity/sex (nuisance laws designed to prohibit)
c. Feinberg’s ride on the bus categorizes different classes of offense
i. Affront to senses (body odor, blaring radio)
ii. Disgust and revulsion (Eating insects, fish heads, vomiting)
iii. Shock to moral, religious, patriotic sensibilities (mistreating corpses, crucifix on t-shirt says “hang in there baby,” use of flag as a rag)
iv. Shame, embarrassment, anxiety (naked person, public sex, sex with animals)
v. Annoyance, boredom, frustration (person keeps talking to you)
vi. Resentment, humiliation, anger (“Keep bitches barefoot and pregnant,” pretends to shoot you with realistic toy gun)
d. Arguments against offense principle:
i. Subjective relativity of offense
(1) What some find offensive others find innocuous
ii. Offence often due to irrational prejudices (“groundless repugnance”)
(1) People offended by many perfectly innocent and socially harmless –even useful–activities
(a) Dress styles, breast feeding in public, gays kissing, blacks and whites holding hands
e. Arguments for offense principle:
i. Some things are such a nuisance, so disgusting, so acutely embarrassing they must be banned
(1) Advertising sexual techniques on billboards, nudity on bus, obscenity over loudspeakers
f. Feinberg accepts a limited offense principle but only for activities that are
i. (1) Universally offensive (not just offensive to prevailing community standards), and
ii. (2) Are not reasonably avoidable
iii. Note: this would not justify banning obscene books/magazines or separated nude beaches as these are reasonably avoidable
Questions on Feinberg’s “Liberty Limiting Principles” (from “Hard Cases for the Harm Principle”)
1. What are the four liberty limiting principles (or reasons for making laws) that Feinberg discusses? Why are they called "liberty limiting principles"?
2. Which of the liberty limiting principles would a proponent of the social contract theory accept and why?
3. What is the harm principle? What is it meant to justify?
4. Give the best example you can think of a harmless immorality, and explain why it is immoral and show how it is harmless.
5. Define Legal Moralism. Give examples of laws which you think are most plausibly justified by legal moralism and explain why. Give examples of "morals laws" which you think are clearly unjustified and explain why. Do you think legal moralism is a justifiable liberty-limiting principle? Why or why not? What are some of the arguments for it? Against it? What does Feinberg think about this? What is the "tyranny of the majority?"
6. What is the difference between offense and harm? Give examples.
7. Explain what the offense principle is. Give examples of laws which you think are most plausibly justified by the offense principle and explain why. Give examples of laws aimed at preventing offensive behavior which you think are clearly unjustified and explain why. Do you think the offense principle is a justifiable liberty-limiting principle? Why or why not? What are the arguments for it? Against it?
8. Explain what constraints Feinberg places on the offense principle in order for him to accept it.
9. Define Legal Paternalism. Give examples of laws which you think are most plausibly justified by legal paternalism, and explain why. Give examples of laws which you think are clearly unjustifiably paternalistic and explain why. Do you think legal paternalism is a justifiable liberty-limiting principle? Why or why not? What are the arguments for and against it?
10. Explain what Feinberg has in mind when he defends "weak paternalism?"