Liberty-Limiting Principles and Justifications for Law
From Joel Feinberg, “Hard Cases for the Harm Principle”
Questions addressed: For what reasons may society limit individual liberty? What is the legitimate role of government? When is legal coercion permissible? For what purposes may law be made?
● Harm principle: To prevent harm to others
○ 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).”
○ What is harm?
- Shouldn’t it include risk of harm?
- How to distinguish harm from offense.
- How to distinguish harm from wrong, harming others from wronging them
● Paternalism principle (legal paternalism): To prevent harm to self (or to make you do what is good for you)
○ E.g., Motorcycle helmets, suicide prohibition, use of heroine, becoming a second wife all might be justified on paternalistic grounds
○ Arguments for:
- State often knows better than you do what is good for you
■ E.g., Only licensed physicians have the knowledge to safely dispense prescription drugs
- Extreme examples: Can’t allow bodily dismemberment or selling oneself into slavery
○ Arguments against:
- State should not treat competent adults like children
- How prevent slippery slope into banning whiskey, cigarettes, fried foods, rock climbing (all of which involve harm or risk of harm to self)
○ Feinberg accepts “weak paternalism”
- Preventing self harm is only permissible if the behavior is “substantially non-voluntary”
■ And thus there really is no violation of autonomy
- Behavior is non-voluntary if it is due to misinformation, neurosis, clouded judgment, or involves risk so unreasonable that one can presume behavior is non-voluntary
- In these cases, Feinberg argues it is permissible to the person until voluntariness is demonstrated
■ Goal is not to judge the wisdom/worthwhileness of the person’s activity, but to determine if it is voluntary
● Moralism principle (legal moralism): To prevent immoral behavior as such (to prevent harmless immoralities, “victimless crimes” committed in private by consenting adults)
○ 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”
○ Are there immoral behaviors which are harmless?
○ E.g., victimless crimes might include: gambling, sodomy & other “sex offenses,” flag desecration, mistreating corpses, kiddy porn novels
○ Arguments for:
- To punish sin, make people moral, make the universe a better place (by preventing and/or punishing such behavior)
○ Arguments against:
- Invasion of privacy
- Threat of tyranny of majority
○ Feinberg opposes moralism;
- Free floating evils count, but not enough to outweigh value of autonomy and the evils involved in enforcing morality behind closed doors
● Offense principle: To prevent offense to others (offense that is not harmful)
○ Offensive but not harmful
○ E.g., obscenity (literature, curses), loud noises, bad smells, public nudity/sex (nuisance laws)
○ Arguments against:
- Subjective relativity of offense
- Offence often due to irrational prejudices (“groundless repugnance”)
■ People offended by many perfectly innocent and socially harmless –even useful–activities
* Dress styles, breast feeding in public, gays kissing, blacks and whites holding hands
○ Arguments for:
- Some things are such a nuisance, so disgusting, so acutely embarrassing they must be banned
■ Advertising sexual techniques on billboards, nudity on bus, obscenity over loudspeakers
○ Feinberg accepts a limited offense principle but only for activities that are
- (1) universally offensive (not just offensive to prevailing community standards)
- and (2) are not reasonably avoidable
- Note: this would not justify banning obscene books/magazines or separated nude beaches