Harmless immorality Notes for April 7

Main points

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.

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 not the same thing as saying there is a necessary connection between law and morality. That is about the essence of law or what law must be like. This is a point about how the law is typically, but not necessarily, used. 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). Feinberg expressed this proposal by distinguishing between two different meanings of the word “harm.”

Our discussion

I thought I could distill two positions from our discussion.

  1. Society cannot pass judgment on some moral matters: there are things that just are not society’s business.
  2. Alex’s argument: society is free to pass judgment on whatever it likes. But there are sharp limits to its ability to enforce those judgments.

Given how many people said they agreed with Alex, I’m not sure if anyone really advocated the first position. But I found it interesting. It struck me as interesting because it seemed to put up a block to moralistic interference at Devlin’s first question. I hadn’t expected that. I had thought that Dworkin was right that all the debate occurs over the second question. SO I was intrigued.

I think that Elin was right to say that a lot depends on what we mean by “society.” If we mean a collection of people, then Alex’s position seems right. If we mean a state that represents and acts for a collection of people, things might be different. But even so, there might be a distinction between passing judgment and enforcing that judgment, as Alex said.

Dworkin’s argument

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.

Cases and coercion

Most of the cases on Dworkin’s list are described as “harmless immorality” because the party who is the victim consents. That seems to show that the actions on the list don’t violate the victim’s rights. Since the relevant sense of harm involves violations of the victim’s rights, these acts would not count as harming the victim.

Roslyn had trouble with these examples. She thought that the victims’ consent in all of these cases would be forced, such that it could not be truly voluntary. If it isn’t voluntary, then it doesn’t count as consent for the purposes of determining whether the victim’s rights had been violated.

I also happened across a story in the news about an Israeli organ trafficking ring. It illustrates some of the complications with these cases. The people who sold their organs were cheated and that’s a reason to punish those running the ring regardless of whether it’s immoral to buy and sell human organs in the first place. It’s hard to generalize beyond that, however. The probability of dealing with shady characters goes up considerably when you’re buying and selling in a black market. If organ selling were legal, it would be no more or less shady than other kinds of commerce. Then we would have a pure case to look at: would it be wrong even if people were paid the agreed price for their organs?

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted April 9, 2010.
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