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Published online by Cambridge University Press: 13 September 2010
The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.
1. John Stuart Mill, On Liberty, in Three Essays (Richard Wollheim ed., 1975).
2. Smith, Steven D., Is the Harm Principle Illiberal?, 51 Am. J. Juris.1 (2006)Google Scholar.
3. George, Robert P., The Concept of Public Morality, 45 Am. J. Juris.17 (2000)Google Scholar.
4. 4 Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing (1988), at 128–133, 328–331, referring to Irving Kristol, Pornography, Obscenity, and the Case for Censorship, The New York Times Magazine, March 28, 1971. Feinberg actually never concedes to legal moralism even here, as he suggests that the viewers of such contests might be so depraved as to constitute threats of tangible, clearly prohibitable harms to the rest of the populace.
5. 2 Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others (1985), chs. 7–8. (Feinberg also imposes a balancing test for criminalization that considers the actor's interests in the offending conduct in addition to the perceiver's interest in avoiding it. See id., ch. 8.)
6. Alexander, Larry, When Are We Rightfully Aggrieved?: A Comment on Postema, 11 Legal Theory325 (2005)Google Scholar; Larry Alexander, The Legal Enforcement of Morality, in A Companion to Applied Ethics 128 (R.G. Frey & Christopher Heath Wellman eds., 2003); Alexander, Larry, Harm, Offense, and Morality, 7 Can. J. L. & Jurisy.199 (1994)Google Scholar. Some of Feinberg's examples of offensive nuisances—certain noises and smells, for example—do not involve perception of a norm violation. (The norm violation consists of causing the noises or smells in situations where others will experience the sensory unpleasantness.) But most of his examples do involve perception of norm violations.
7. In the articles cited supra in note 6, I argue that (1) most of the offensive acts that Feinberg would permit the state to criminalize involve norm violations that are perceived by others; (2) perceiving a norm violation is just one method by which one acquires knowledge of norm violations; (3) knowledge of norm violations causes profound offense (as Feinberg acknowledges); (4) knowledge of norm violations can be just as personalized as perception of them; (5) therefore the case for punishing norm violations that are known though not directly perceived is frequently as strong as the case for punishing perceived norm violations, which is tantamount to legal moralism.
8. See Mill, supra note 1, at 14–15.
9. See Alexander, Legal Enforcement, supra note 6, at 135.
10. Some libertarians might believe this, but most leave moral space for acts that are not punishable but are nonetheless immoral. Failures to engage in easy rescues or to give to charities that aid the unfortunate would fall into this category for most libertarians.
11. Feinberg, Harmless Wrongdoing, supra note 4, at 154–155.
12. Michael Moore ties retributivism to legal moralism in Michael Moore, Placing Blame (1997), at 71–72.
13. 1 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others (1984), at 216.
14. See, e.g., Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (2009).
15. Feinberg, Harm to Others, supra note 13, at 126–186.
16. Id. at 103–104. Parfit's example first appeared in Derek Parfit, On Doing the Best for Our Children, in Ethics and Population (M.D. Bayles ed., 1976).
17. Feinberg recognizes this, and though he rejects criminalization, he does so halfheartedly. See Feinberg, Harmless Wrongdoing, supra note 4, at 27–30.
18. Feinberg spends a lengthy chapter discussing these kinds of acts. Id. at 211–276.
19. See Bergelson, Vera, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev.165 (2007) (discussing the notorious German case of Armin Meiwes, who killed and ate Bernd Brandes with Brandes's consent)Google Scholar.
20. See Feinberg, Harmless Wrongdoing, supra note 4, at 329.
21. See id. at 283–285.
22. David Brink (in correspondence) points out that on an interpretation of the harm principle, even if tolerating harmless immoralities does lead to an increase in harmful acts, that will still not be a sufficient justification for prosecuting the harmless immoralities if the effects of individual immoral acts are small and/or diffuse.
23. See Feinberg, Harmless Wrongdoing, supra note 4, at 81–123.
24. See George, supra note 3.
25. Tribe, Lawrence H., Ways Not to Think about Plastic Trees: New Foundations for Environmental Law, 83 Yale L. J.1315 (1974)Google Scholar.
26. Feinberg, Harm to Others, supra note 13, at 36.
27. Id. at 37–38.
28. Id.
29. Id at 45–51. For some forceful criticisms of Feinberg's conception of harm for purposes of determining the scope of the harm principle, see Holtug, Nils, The Harm Principle, 5 Ethical Theory & Moral Prac.357 (2002)Google Scholar. Note that Feinberg could avoid the difficulty of finding harm in Scenario One if he included living in an aesthetically pleasing environment as one of his welfare interests. He clearly does not do so, even by implication. (I thank David Brink for this point.)
30. See, e.g., City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249 (1985).
31. Alexander, Larry, What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. Penn. L. Rev.149, 178–183 (1992)Google Scholar.
32. See supra note 6.
33. Again, not all conduct that causes offense when perceived does so because it involves norm violation. Some conduct is offensive by virtue of causing unpleasant sensory experiences. But to repeat a point made earlier (see supra note 6), a good deal of the conduct the perception of which causes offense and which Feinberg thinks regulable does involve norm violation.
34. Actually, as Alan Wertheimer has pointed out to me, the relation between “it is wrong” and “it is offensive” is more complex than I have presented it. As he puts it, it is quite possible that for some “harmless immoralities,” the judgment of wrongness follows from rather than precedes the sense that the conduct is “yucky.” In other words, it is the reaction of disgust that causes the judgment of moral wrongness. Still, this is not to say that perceiving the conduct is what makes it wrong.
35. It says something about Feinberg the person that he found the liberty to engage in profoundly offensive conduct too counterintuitive to accept; one wonders what he would think of the ever-increasing coarsening of American culture, with its degrading TV confessionals and reality shows and, as a consequence, the declining capability of Americans to be shocked.
36. See Alexander, When Are We Rightfully Aggrieved?, supra note 6, at 330.
37. What it means for the immorality to be perceived is not completely clear. For example, consider the conduct described in note 41infra.
38. See Feinberg, Offense to Others, supra note 5, at 35.
39. Id. at 10–13. The activities taking place on a bus that Feinberg describes include both nonmoralized offensive conduct, such as riding while not having bathed for a long time, and also harmless immoralities, such as performing sex acts, blaspheming, and uttering racial epithets.
41. There are also norms barring certain conduct “in public” that are violated even when no one directly perceives them. If one observes a couple under a blanket who are obviously copulating—they are moving in a characteristic way, sighing, and moaning, with contraceptive packets and lubricants on the ground next to them—they are violating the norm against public copulation even though others cannot directly perceive but must infer their copulation. See Alexander, When Are We Rightfully Aggrieved?, supra note 6, at 329.
42. Feinberg argues that profound offense caused by “bare knowledge” cannot be a legitimate basis of criminalization. His argument for this conclusion is that the offensive conduct, not being directly perceived, cannot cause a sufficiently personalized harm to be deemed a rights violation. Put differently, for Feinberg, engaging in offensive conduct when it is involuntarily perceived by those who find the conduct offensive can count as a violation of the latter's rights. But engaging in offensive conduct that is not directly perceived but merely known to be occurring is not a violation of the offended knowers' rights. See Feinberg, Offense to Others, supra note 5, at 75–71. I find Feinberg's distinction between directly perceived and merely known offensive conduct unconvincing. See Alexander, Harm, Offense, and Morality, supra note 6, 209–210. The latter can be just as “personal” as the former. And the distinction between direct perception and mere knowledge is itself problematic. See, e.g., note 41supra.
43. Consider these signs on Ed's property:
(1) “Sex with animal partners. Tuesday it's donkeys. Come and get your kicks.”
(2) “Corpse-cooking contests. Wednesday it's best appetizer recipe for Aunt Emma's shanks. Prize is Grateful Dead CD.”
See Alexander, When Are We Rightfully Aggrieved?, supra note 6, at 330.
45. I am obviously using “legal moralism” in a somewhat extended sense to cover various norm violations, including violations of aesthetic norms. (I again thank David Brink for this point.)
46. Of course, the plastic trees will not be experienced in the same way as real trees. That just reinforces my point that “bare knowledge” colors perception and how it is experienced. A father and daughter walking hand in hand will surely appear differently to one who knows that they routinely engage in incest from how they will appear to one who does not know this.
47. See Robert Nozick, Anarchy, State, and Utopia (1974), at 42–45. I thank Matt Adler for forcing the discussion in this paragraph.
48. Samuel Scheffler recently argues that traditions can be normative. See Samuel Scheffler, The Normativity of Tradition, in Samuel Scheffler, Equality and Tradition (forthcoming 2010). If the liberty of some can be restricted to protect others' traditional practices, this, too, seems difficult to square with the Mill/Feinberg version of the harm principle.
