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