COMP~ 10 TO PHILOSOPHY OF LAW D LEGAL THEORY

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Jora. . :31Press. Answers to some of these questions may be affected by whether relevant moral judgments are essentially religions. L75--9}. (2) to to refrain from acts refrain from acts that cause indirect acts that offend and ) to refrain cause harm to oneself to refrain from acts that others believe are immoral.rahan & \IV oodfall. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Fre:sE:. ersity Press. More precisely. I 33 Legal enforcement KENT morality GREENi~_ IN ALT Press.! and Political "ginia Law enguin. 1\. iversity Press. Tevtl York: ()XfC1I'd is narrower than the coverage of those terms. people raise questions about legal requirements: (1) to acts that benefit others. University Press. 38. Disagreement arises over using the la-w to enforce aspects of morality that do not involve protecting others from fairly direct harms.

theft.OLHJL<. assault. L. Hart pointed out (Hart. and fraud are Immoral.U. 188-95). A. some forms of fraud. In any society sufficiently develto have a law distinguishable from its social morality. As H.KENT GREENAWALT Any comprehensive morality includes restraints against harming other people. theft.. the law will forbid assault. Murder. law and social that con- that matter when one asks if of to someone else feeling or hibited because it I_'H. 1961. pp. .

principles must include moral judgments. atly devel- will out . But it is hard to understand how that position could be defended. ("No other" is the precise characterization here because deciding that only preferences.balancing rmplexlttes grounds. If every ght be proth such an ld be swal- legal regulation being based on some assessment of negative consequences that takes account only of overall individual preferences. harm to others (determined partly by moral judgment) """.-. doubts about whether the IflVi_7 an . someone thought that sound morality includes many bases for judgment.. SOD:lf. ed. and that these are irrelevant for regal regulation.P_'. or ability to pay. by contrast. happiness.LEGAL ENFORCEMENT OF MORALITY ier people. on any defensible understanding. the sarne I that COHude lnsrru ted arsenal others are protecting . would they seem more limited than the grounds for moral. It may that for reasons of moral and political philosophy. judgment? That depends. be an basis for legal whereas moral evils that I n_OV1I turn. or ability to pay should count is itself a moral judgment) If someone conceived the grounds for legal regulation as so limited. does it follow that appropriately enforce morality in general? No. with the conclusion that.v. That position might be cast as one in which legal regulation could be determined without moral judgment. An "average happiness utilitarlan" thinks moral judgments should be based on actual prospective happiness. If moral judgment infuses of harm. It would be misleading to put that position as one in 'which legal regulation is determined without moral judgment. Suppose. Why should moral distinctions that govern the evaluation of acts cease to be of direct relevance for evaluating legal rules? We are left I believe. relying on no (other) moral judgments. happiness. because one 'would use the same kinds of assessments to make correct moral judgments as to determine appropriate legal restrictions.

H. and that such a duty imposes of citizens to pursue their own projects. they cannot stand by and let them suffer avoidable injury. few doubt that the law imposes on some people some to act to avoid harm and to contribute to the common welfare. A legal duty to prevent death or severe injury to U. let the baby drown would be guilty of murder or manslaughter. we can quickly see that no universal line is drawn between action and omission.".·'.·'_"". that the passerby has a "moral duty" to rescue the baby. and most would probably acknowledge that the stronger language of moral duty is apt for the rescue situation I have posed.KENT GREENAWALT morally preferable to letting them occur. If we turn to the law. people have general duties to act for the benefit of the public. with full awareness. Thus. people in a position to rescue or at horne with their telephones as a rape happens outside) someone else may do the job. that is.L '-''-'L01'. Further. that a to need is too vague. From a consequentialist problems are matters of degree. pay tEU[eS. Some of the arguments such liability are that determining the state of of someone who but did not is usually very difficult. A parent or hired nurse who. People perform a wide range of roles that include responsibilities to care for others. even if they would rather not.C. principled controversy appears to be over whether should be legally to assist other individuals in need. They have a legal duty to testify. When people have a special responsibility to care for others. Anyone who IS not an anarchist is acknowledge that governments properly impose on people some positive to act. and submit to jury service.''~C'CL .

Mill acknowledges that when people harm themselves.responsibilities ie benefit of the not. properly be a basis for legal restriction? I shall consider three kinds of instances: (1) when an action will cerIS assist strans in:situations g many 01 S'ODJe· with young children commit material and support for them. 1975. these evere injury to and slight cost least. this affects others through their sympathy and interests. if they didn't think they could rely for rescues on the moral sense of others).0 could rescue scue (say on a ide) frequently help others in the autonomy spective. Many acts that do not cause direct harm may hurt people indirectly. "the only purpose for which power can be rightfully exercised over any member of a civilized community. and perceptions of immor- ality are themselves inappropriate bases for regulation. imposing the duty is unwise. pp. against his will. ae is drawn benlity to care for ry. As an Mill says. John Stuart Mill wrote. Such a duty is a reasonable responsibility of citizens. 15). on balance. p. is to prevent harm to others" (Mill. they must chist is like!y to positive duties e requirements gers should be rments against 1. offense. 1975. the most famous work on the legal enforcement of morality (and on enforcement of morality by public opinion). p. A parent or guilty of murder . but a soldier or policeman should be punished for being drunk on duty" (Min. 99-100). we need to look at harms to others. Perhaps. In On Liberty. uld 'be treated . May indirect harms to others. Before we examine claims that self-protection. 1975. 100). taken out of the self-regarding class" (Mill.LEGAL ENFORCEMENT OF j"WRALITY ly acknowledge utuation I have 3 baby. "no person ought to be punished simply for being drunk. contrary to Mill. but when "a person to violate a distinct and assignable obligation to any other person or persons [is] the case. but it involves no breach of any defensible principle that law should not enforce morality.

If one focussed on some non-consequential right to liberty. the value of and the pleasure of might somehow be weighed against likely cost. From a consequential point of view. Were the percentage of non-addicted users very slight.QUL'_· UV'C·'j!. even a high percentage of users. the basic idea of some claim to liberty does suggest a counter to any analysis of the problem that is simply consequentialtst. and restraint at the initial stage is so much more effective. the cost in human misery of recognizing this claimed right would be very high. and the idea of any absolute right of this sort is unattractive. What of actions that are said to bear an unacceptable risk that one "will a burden on society? This is one justification offered for making drivers wear seat belts and motorcyclists bicyclists wear helmets. If society wants to protect itself. Nonetheless.. an insufficient basis for restriction. lack such control and will end up doing harm. . in principle. does it also save public money because smokers tend to live less after retirement? Someone who places a great intrinsic value on Liberty may claim public burden argument is. The cost appraisal would need to be reasonably comprehensive: if leads to medical expenses.KENT GREENAWALT governments cannot be trusted to limit legal restraint to extreme situations in which expected future harm is so serious and pervasive..JVLU'CU'JH' . as with extremely dangerous mountain expeditions.H'_ . The appeal of claim to Uberty seems most powerful when the high-risk activity is thought to reflect some striving of the human spirit. it can that people who engage in activities '. one might believe that people who are capable of controlling themselves should not be restricted because other people.

the very high. but most smokers find it very difficult to stop. easiest to 'rant acrosseffects run IIg . in any event. no laws against most presently proscribed drugs. Experiments in living are vital for the progress of the human race. and related matters.Less. no rules forbidding swimming at unguarded beaches.the basic analysis of the i liberty seems commendable tain climbing e will become nobile drivers a consequennconstrained zould need to leal expenses. paternalism that serves the reflective values of actor. The value of autonomy seems most directly opposed to restriction that is designed to protect the actor himself. Mill speaks of an absolute right. and . making even foolish choices so long as they do not harm others. no laws generally restricting voluntary sexual activities among adults. The majority cannot be trusted to restrict wisely. people grow by learning through experience. Such an absolute principle is more comfortably defended on the basis that adults should have autonomy to decide how to live their lives. and much less extensive regulation of food. no legal restraint of suicide. it helps to consider voluntary choice.LEGAL ENFORCEMENT OF MORALITY situations in lnt at the initial te e might believe )t be restricted ontrol and will zery slight. Given the nearly universal desire for decent health. When one thinks of most sexual activities. but his claimed basis for the right is consequential. ~ after retire. If son tat lesser re- and helmet laws. and that. what is good for most people often is not good for everyone. these arguments are powerful. medical drugs.aim that the notion. In considering the defensibility of' a powerful principle against legal "paternalism" that protects people from themselves. can we not confidently say that cigarette smoking is harmful to smokers (or at least unwisely reckless)? Unless one's distrust of the majority is extreme. But what of an activity like cigarette smoking? Few adults (in the United States at least) are pleased to be smokers. one cannot come up with a principle as absolute as Mill's on consequentialist grounds. He argues that given differences among individuals.

(I pass over the complicated status of coercion successfully alters the subject's judgment about w-hat is worthwhile.KENT GREENAWALT style is best for them.) This justification for restriction is more an insult to their status as autonomous persons than any serious justification cast in terms of . If they are told they must refrain because such a life is psychologically unhealthy and abstinence is preferable. their own deep sense of how to live is disregarded.

tte smoking . good should or (Feinberg.eI'S observe them or 'who know they take place. performance before: willif1{J CDrISWnerS is a different matter. able. saies . before involuntary witnesses.LEGAL EI'. deep sense of . Perhaps no iberg: writing s an absolute .tnw"Cj .onsequences third persons taxation de· subjects. In its actual import on effective choice. My claim here is that no easy step takes us from belief that the law of crimes should Leavebehavior free to a conclusion that taxation to discourage the behavior would be inapt. Often people regard the behavior as immoral in some sense.) Of course.) This justlfis persons than reflection. On the other hand. and the price of cigarettes is no greater than if ordinary natural. Is offense an appropriate basis for straint or is this em aspect of morality that the law should not Analysts is fairly simple for activities that offend unwilling witnesses may be carried on in morality is not in in failing to the of what may decently be done in public. that L"~"U. the law not enforce the sensitivities of the most timid. dedistrusts the t. ran the pracorse. (disastrous storms) or economic factors drove the price of cigarettes up. of criminal Some acts not cause harm in a more restricted sense offend otI1. in principle.'H_'" (liq. the choice to smoke is still available.JFORCEMENT 1 OF MORALITY a life is really . and many things nons treat as offensive belching loudly in a cn. the tax still differs from a successful prohibition. :!_ . from a prohibition.coercion that e.

'--'. but constitutes harm . (Perhaps in a country that is overwhelmingly Jewish or Muslim.KEl''fT GREENA WALT !.O secular harm cannot be a basis for restriction in a country that ious liberty. on pork eating would be acceptable)."-HUA. Third.L·".[Tpn appropriate for restrtction are may count in but could it ever liberty? I am very doubtful. offense at non-religious practices (such as homosexual acts or eating pork) because the practices violate some people's religious beliefs not be a basis for restriction in a country that values religious freedom and not maintain a dose connection between some religion and the government.. lille are left 'with possibility of a restriction connected to belief in wrongfulness that is not ""."·""".

one dismtegration skepticism. fic. The last claim is plainly consequeutialtst. this seems drift of Patrick Devlin's argument that in principle. 1965). The notion is who perceive as accepting acts that they as other citizens. that communities could observe other while respecting wide variations in private now variations in religious belief and practice. appropriate (Devlin. (2) that a community properly punishes what it regards as immoral.ecognlzes relig. (3) that a community may preserve its moral structures. without more. When the ig to our erno- ed in the t may threaten A claim that the law should enforce morality as such might assert a rationale that: (1) objective immorality should be punished.itieso survive t change (among religious beliefs.un.iosexual acts or [s beliefs should eedom and does le government. ual acts pro·- ernned cities . It may he H. for example). but conceivable justifications social restrictions. (4) that people have a legitimate interest in preserving structures of life familiar to them. without more. and the answer vary among communities. 1. Given normal fears of change and the actual of C0I111TI. to the detriment of people in general. Hart (1961). (5) that liberty in self-regarding matters may weaken a community and dissolve bonds of other-regarding morality. and over time lessen their respect for the rights and interests of others. V\Tithinsocieties based on particular views about objective immorality may seem perfectly appropriate. Although various passages may be differently. prohibltions on )11 amatter of tmes presented offense. is real issue is factual.LEGAL ENFORCEMENT OF MORALITY .

... who is asking himself if a community is jusnfled in enforcing moral norms that the community thinks are objectively required/) Claims about moral structures and structures of life seek to provide an answer why the community may enforce its morality. must security in people's lives..71 iar to them.". Both claims come down to that of a community some interest in .. If straint...0. This is need to be very .-"". the claim.KENT GREENAvVALT it is objectively required? (I pass over the complex intermediate possibility of an observer who does not think a particular morality is objectively required..

T. 1961: The Concept of Law. [1859] 1975: On Uberty.) .equired. (A collection of varied materials and commentary. (Classic arguments that only direct harm to others justifies prohibttion. were immoral las concerned. (Develops claim the law and social morality will inevitably overlap. Stanford: Stanford University Press. but who 1 norms that the ~ovide an answer down to the idea orms of life farnllontention that a ense justifies reid psychological s. London: Oxford University Press. (Libertarian response to Devlin.) Hart. L.LEGAL ENFORCEMENT OF M~ORALITY ~possibility of an . although one liberty of people spect to offense. A. sty to sustain a requisites was "me Court case 1 homosexuals. Oxford: Clarendon Press. J. and Morality.) Mill.) --1963: Law. New York: Knopf. Liberty. 1983: The Legal Enforcement of Morality. in all applicaital interest of Grey. S. H.

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