In On Liberty, Mill claims that three reasons for interfering with individual liberty are illegitimate: paternalism, moralism, and offense. We talked about the first last time and the second today. For the third, I recommend pp. 438–53 and especially 444–6.
We spent about half of our time trying to frame the discussion and the other half talking about specific examples that seem to favor Dworkin’s answer.
It is obvious (to me) that the purpose of significant parts of the law in our society is to enforce our moral values. Note that this is a separate issue of whether there is a necessary connection between law and morality. The former describes a use of the law. The latter describes its essence. Those who maintain that there is a necessary connection between morality and the law deny that there are immoral laws, for instance. This is not something that someone who describes a use of the law is committed to believing.
In any event, humor me by granting that no one seriously maintains that it is always inappropriate to enforce moral principles with the law. Instead, what we typically get are attempts to distinguish between the parts of morality that the law can be used to enforce and those parts that it cannot be used to enforce. Specifically, we talked about Feinberg’s proposal that the law can only be used to enforce moral principles when doing so prevents one person from wronging another (i.e. violating that person’s rights) and not when doing so merely prevents someone from doing something wrong (without violating anyone’s rights).
Dworkin maintains that Feinberg’s arguments for drawing a hard distinction like this are unimpressive. They mainly consist in assertions that when the loss of liberty is weighed against the advantages of punishing or preventing mere moral wrongs, it will always favor liberty. But that’s presumptuous. How can he say that will be true of every case?
That’s why the invocations of particular cases undermined Feinberg’s argument. They show there is a reasonable case for legal regulation. That means they have to be confronted on an individual basis to show that the scales really do tip the way that Feinberg predicted they would.
But, of course, that means that we would not have a hard, principled objection to using the law to enforce morality. Rather, we would go case by case, weighing the advantages and disadvantages of regulation.
This question is more open to dispute. Kelly and Ryan were more inclined to exclude moralism. Thinking back, I think they had different reasons.
Kelly tended not to think that there were any examples of mere wrongs that didn’t involve wronging anyone in particular. She tended to think that if A consents to what B does to A, then not only does B not wrong A but that B does not do anything wrong at all.
Ryan was more inclined to worry about the indirect effects of allowing the state to interfere with liberty on moral grounds. Even if some cases of regulation are legitimate, the government would use its power to regulate far more than those cases. Toby’s argument could be used along with Ryan’s. Toby argued that we’re more sure of our judgments about actions that wrong someone than we are of our judgments about actions that are merely wrong, without wronging anyone in particular. That uncertainty could open the door to all sorts of mischief.
Speaking for myself, I think it’s possible that our discussion gave a misleading impression of our certainty about actions that wrong someone. I think we’re pretty sure that they are legitimate targets of legal prohibition. But I don’t think it follows that we’re always sure about which actions belong in that category. Do people have rights against being the targets of hate speech, for instance? I’m not sure. I’m much more sure that hate speech is wrong. (Though I’m not sure about exactly what legal penalty, if any, should be applied to it).
Ryan’s point is also well taken. We should always be careful any time we allow the government to cross a line: we may not be able to make it go back! But I’m not sure that this is the right line. We already let it enforce some parts of morality: our rights. And we don’t want it to enforce all of even that part: imagine how awful it would be if the government enforced all of my rights, making sure that people treated me with complete courtesy, honesty, fairness, and so on. Some of our social lives have to be lived with informal enforcement.
Anyway, the point is that we have to draw a line between what we want the government to enforce and what we don’t want it to enforce. And that line has to cut across the moral category of my rights or, to put it the other way around, actions that would wrong me. So why can’t we draw a similar line through the category of acts that are merely wrong, without wronging anyone in particular? Why can’t there be some of those that the government should not interfere with and others that it can interfere with?
Finally, a fair amount of our discussion of the examples tended towards questions about whether the examples involved behavior that is genuinely wrong, even in the sense of being merely wrong without violating anyone’s rights. I think Dworkin would have been happy with that since he thinks that’s exactly where our efforts should be directed rather than at attempts to come up principles that rule out any regulation of the merely wrong.