Liberty-Limiting Principles and Justifications for Law

From Joel Feinberg, “Hard Cases for the Harm Principle”

Questions addressed: For what reasons may society limit individual liberty? What is the legitimate role of government? When is legal coercion permissible? For what purposes may law be made?


        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).”

                  What is harm?

                    -        Shouldn’t it include risk of harm?

                    -        How to distinguish harm from offense.

                    -        How to distinguish harm from wrong, harming others from wronging them


        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 second wife all might be justified on paternalistic grounds

                  Arguments for:

                    -        State often knows better than you do what is good for you

                                      E.g., Only licensed physicians have the knowledge to safely dispense prescription drugs

                    -        Extreme examples: Can’t allow bodily dismemberment or selling oneself into slavery

                  Arguments against:

                    -        State should not treat competent adults like children

                    -        How prevent slippery slope into banning whiskey, cigarettes, fried foods, rock climbing (all of which involve harm or risk of harm to self)

                  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

                    -        In these cases, Feinberg argues it is permissible to the person until voluntariness is demonstrated

                                      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 as such (to prevent harmless immoralities, “victimless crimes” committed 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 and ... punished with extreme severity”

                  Are there immoral behaviors which are harmless?

                  E.g., victimless crimes might include: gambling, sodomy & other “sex offenses,” flag desecration, mistreating corpses, kiddy porn novels

                  Arguments for:

                    -        To punish sin, make people moral, make the universe a better place (by preventing and/or punishing such behavior)

                  Arguments against:

                    -        Invasion of privacy

                    -        Threat of tyranny of majority

                  Feinberg opposes moralism;

                    -        Free floating evils count, but not enough to outweigh value of autonomy and the evils involved in enforcing morality behind closed doors


        Offense principle: To prevent offense to others (offense that is not harmful)

                  Offensive but not harmful

                  E.g., obscenity (literature, curses), loud noises, bad smells, public nudity/sex (nuisance laws)

                  Arguments against:

                    -        Subjective relativity of offense

                    -        Offence often due to irrational prejudices (“groundless repugnance”)

                                      People offended by many perfectly innocent and socially harmless –even useful–activities

                                         *        Dress styles, breast feeding in public, gays kissing, blacks and whites holding hands

                  Arguments for:

                    -        Some things are such a nuisance, so disgusting, so acutely embarrassing they must be banned

                                      Advertising sexual techniques on billboards, nudity on bus, obscenity over loudspeakers

                  Feinberg accepts a limited offense principle but only for activities that are

                    -        (1) universally offensive (not just offensive to prevailing community standards)

                    -        and (2) are not reasonably avoidable

                    -        Note: this would not justify banning obscene books/magazines or separated nude beaches