Philosophy 355 Contemporary Moral Problems Darwall Winte r 1996 4/15 ENFORCING SOCIAL MORALITY I. The issue: whether, and under what circumstances, pornography can be legally restricted. II. John Stuart Mill, Liberalism, and the Harm Principle A. The Harm Principle (HP): A person's freedom of action can be legally restricted only if such restriction is necessary to prevent harm to others. B. Although it concerns the law, this is a moral or ethical thesis. C. It follows from HP that: i. The fact that if someone were permitted to do X, she might harm herself, is not a justification for a legal prohibition on doing X. ii. The fact that doing X is (or is generally believed to be) wrong is not in itself a justification for a legal prohibition on doing X. D. Unlike libertarians, for whom the harm principle follows from claims about fundamental human rights, Mill derives it from a more fundamental utilitarianism. i. The interests of humankind as a "progressive being." Importance of self-determination and personal growth. ii. The need for "experiments in living." iii. "Paternalistic" or "moralistic" social intervention is likely" a. to stifle socially beneficial experimentation and self- b. to mistake the restricted person's real interests (each person is likeliest to know her own interests best). E. In sum, if society were to be justified in enforcing morality when there was no question of protecting particular individuals from harm, then this would have to be either because 1. it is justified in imposing a morality on those who did not accept it, or 2. because it is justified in providing an external incentive to those who accept it actually to follow it. But in the first case, this would be unlikely to enhance the value of lives of those on whom the morality is imposed, since they could not affirm it themseves from the inside. And in the latter, even if they accept the morality, legal incentives could not add to the authenticity of their own moral lives. III. Patrick Devlin, Social Enforcement of Morality, and the Critique of the Harm Principle A. The 1957 Wolfendon Report B. Devlin's Critique of the "Millian" principles underlying the Report C. Devlin's Position: Conduct which violates widely and firmly held social morality may be legally prohibited. 1. widely held moral opinion--it must be part of moral "common sense"; something a "reasonable member" of the society would agree with. 2. firmly held moral opinion--dispreference is insufficient; there must be a "real feeling of reprobation." To contrast with HP, let us call Devlin's position EM (Enforcing Morality) IV. Internal arguments for EM. A. Even if we are initially disinclined to accept EM, Devlin argues that we all accept laws which violate HP and which cannot be justified without EM. Examples: 1. Laws prohibiting dueling 2. Laws prohibiting "consensual" slavery 3. Laws prohibiting prostitution 4. Laws prohibiting polygamy 5. Laws prohibiting euthanasia 6. Laws prohibiting "consensual" assault 7. Laws prohibiting the sale of children All of these are examples of laws that restrict the conduct of individuals even when it does not threaten harm (assuming that consent cancels any individual's claim that he has been harmed). Probably none of us agrees with all of these laws. But Devlin is relying on the fact that all of us favor one or more of them. If we do, then we have to reject HP. And unless we can find some other basis for approving of the law other than EM, we are committed to accepting it. Can you think of any other laws that might be candidates? V. External Argument. In addition, Devlin argues as a general proposition that society cannot help but have a public morality, and that it is therefore permitted to protect that public morality, since a threat to it is no less than a threat to its identity as a society. A society must have a "community of ideas" to exist and this necessarily includes ideas about how people should and should not behave: its morality. Of course, our morality might have been an entirely liberal one. We might have believed that there is no wrongdoing that does not involve harming someone, or risking harm, against their consent. If that were true then we would not be justified in outlawing any conduct other than that. A society may, however, hold that there are things it is wrong to do to others, or even just to do oneself, despite no one's being harmed (except perhaps morally). Moreover, some such beliefs may be very important to their morality. Since its morality is crucial to its own identity, a society is justified in giving expression to this morality in its law, since this both protects and confirms what is central to the society. It is, therefore, sufficient justification for a law prohibiting X that X is (widely believed to be) immoral. VI. As examples, consider the laws against prostitution and polygamy. Both might be thought of as attempting to protect an ideal of nonexploitative relationship. Even if the individuals who consent to such arrangements have no claim to be harmed by them, nonetheless it might be argued that we are all poorer if we are unable to enforce this ideal.