Liberty-Limiting Principles, Justifications for Law
From Joel Feinberg, "Hard Cases for the Harm Principle"
For what reasons may society limit individual liberty? What are the legitimate roles of
government? When is legal coercion permissible? For what purposes may law be made?
- There are four principles
(Harm, paternalism, moralism, offense)
- More than one can apply to the same case
- Most everyone accepts the harm principle and finds the others more controversial So to ban something people try to argue that it causes harm (even when this is not likely)
- 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)."
- 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
- Pro: State often knows better than you do what is good for you; can't allow
bodily dismemberment or selling oneself into slavery
- Con: State should not treat competent adults like children; how prevent
slippery slope into banning whiskey, cigarettes, fried foods, rock climbing?
- 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
- Consider a person about to saw off her own arm
- Here one stops the person until voluntariness is shown
- 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 (to prevent
harmless immoralities, "victimless crimes" 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"
- E.g., gambling, sodomy & "sex offenses," flag desecration, mistreating
corpses, kiddy porn
- For: To punish sin, make people moral, make the universe a better place
- Against: Invasion of privacy, threat of tyranny of majority
- Feinberg: Opposes moralism; free floating evils count, but not enough to
outweigh value of autonomy
- Offense principle: To prevent offense to others (offense that is not harmful)
- E.g., obscenity (literature, curses), loud noises, bad smells, public nudity/sex
- Against: Subjective relativity of offense; due to irrational prejudices, people
offended by many perfectly innocent and socially harmless activities (e.g.
dress style, breast feeding in public, gays kissing)
- For: Some things are such a nuisance, so disgusting, acutely embarrassing
must be banned (sexual techniques billboards, nudity on bus, obscenity over
- Feinberg: Accepts limited offense principle if banned activities are (1)
universally offensive (not just offensive to prevailing community standards)
and (2) are not reasonably avoidable