Abstract
One of the few benefits of growing older is that one is offered the opportunity for pleasures of nostalgia. This conference provides many such pleasures for me. It allows me to return to a university at which I spent many happy and productive years and to honor Joel Feinberg—a man for whom I have great esteem and affection. I am also pleased to have as my commentators two persons for whom I hold similar feelings: Herbert Morris and Jean Hampton. To Joel Feinberg and Herbert Morris, I also owe debts of intellectual and personal gratitude, for these two men have both played important roles in my philosophical life—roles that they have perhaps forgotten or of which they were never even aware.
The law must protect...the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies.
Lord Patrick Devlin
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References
James Fitzjames Stephen, Liberty, Equality, Fraternity (University of Chicago Press 1991) (1874); Patrick Devlin, the Enforcement of Morals (1965) (containing a revised version of Devlin’s 1959 Maccabaean Lecture “The Enforcement of Morals” and his response to Hart and other critics.); H. L. A. Hart, Law, Liberty and Morality (1963).
I have no intention of citing this essay, since I wish for it to remain in the obscurity to which it has justifiably been consigned.
Joel Feinberg, “Some Unswept Debris from the Hart-Devlin Debate” 72 Synthese 249275 (1987); Joel Feinberg, Harmless Wrongdoing, 4 The Moral Limits of the Criminal Law 124–175 (1988).
Joel Feinberg, “Some Unswept Debris from the Hart-Devlin Debate” 72 Synthese 249275 (1987).
As Feinberg points out in Harmless Wrongdoing, Devlin’s exposition of his view is often unclear¡ªleaving the reader uncertain of the exact nature of his “legal moralism.” Feinberg, Harmless Wrongdoing, supra note 3, at 124–25.
This worry applies for U.S. law, of course. Devlin, however, lives under a legal system that does not have a constitutional prohibition against the establishment of religion. I do not, by the way, mean to suggest here that it is always easy to draw the secular/religious distinction. The very existence of natural law theory, for example, suggests that any simple way of attempting to draw the distinction will probably be inadequate.
This issue of sodomy and virtue is actually of some complexity. I will explore it in a bit more detail later in the paper.
Suppose that many or even most people find that they are repelled or disgusted by homosexuality. It does not follow from this that their repugnance or disgust is moral in nature. That would require a separate argument. One could argue that a majority of citizens in a democracy have a right to enforce their strong moral convictions but that they do not have a right to enforce all of their strong convictions (regardless of their basis). Suppose it is true that shared strong moral preferences bind society together, and that for that reason the law may enforce them. Do shared strong aesthetic preferences, for example, bind society together in a similar way? I do not, of course, mean to suggest that the moral/aesthetic distinction is always easy to draw.
Homosexuality may be a particularly unpersuasive example of sexual conduct that, if tolerated, would threaten family and thus social stability. If homosexual inclinations are mainly a matter of genetics, and if such inclinations tend to occur only in a minority of the population, then toleration here would presumably have less extensive ramifications than if directed toward inclinations more widely shared. It does not strike me as absurd to suggest that the sexual revolution of the sixties, and the resulting freedom men felt to abandon family responsibilities for “self-fulfillment”, generated considerable social harm, particularly to women and children. It is much harder to link up homosexuality with this particular piece of social decay, however ¡ªunless one thinks that the problem was simply excessive sexual freedom in general and that homosexuality falls under this description.
Kant’s views on punishment are actually more complex and ambiguous than this. Here I am simply picking up on one thread from his various discussions of the topic. See, Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?”, 87 Colum. L. Rev. 509 (1987).
Joel Feinberg, Harmless Wrongdoing, supra note 3, at 145.
Ronald Dworkin, A Matter of Principle 181–204 and 335–372 (Harvard University Press 1985). Some of Dworkin’s more recent writings suggest that he has to some degree changed his views on these matters.
Even using the phrase “procedural fairness” to refer to conditions of responsibility strikes me as a bit odd. Strict liability is certainly unfair, but procedurally unfair? The unfairness of strict liability, even in a harm preventing system, strikes me as involving the unfairness of holding people to rules to which they lack substantial capacity to conform¡ªsomething to be avoided, through mens rea requirements, in any just system of substantive criminal law. A system that fails to take account of motives or character, however, may also be criticized¡ªbut on grounds of unfairness? It will, of course, be unfair¡ªperhaps even procedurally unfair¡ªto ignore these factors in a system that claims to target them rather than mere harm. The legitimacy of such targeting is the very point of the debate, however¡ªa debate obscured rather than illuminated by the suggestion that its resolution will emerge from a consideration of the value of fairness.
Joel Feinberg, Harmless Wrongdoing, supra note 3, at 150.
Hart, in his discussion of the grading of punishments and the moral judgments of denunciation expressed by such grading, trades on an ambiguity that may tempt Feinberg as well. Hart, supra note 1, at 36–37. He does not seem to see the difference between adjusting punishment in accord with the gravity of the offense and adjusting punishment in accord with the wickedness of the offender. The former surely is compatible with liberalism, but it is not at all clear that the latter is.
Feinberg, “Some Unswept Debris from the Hart-Devlin Debate,” supra note 3, at 259260.
Herbert Morris, “Persons and Punishment” 52 The Monist 475–501 (1968).
See my “The State’s Interest in Retribution,” Journal of Contemporary Legal Issues, Spring, 1994. In recent years, I have come to have some serious doubts about the strong versions of retributivism that I was once inclined to defend. I have expressed some of these doubts in the forthcoming essay noted above and also in my “Cognitive and Moral Obstacles to Imputation”, Jahrbuch F¨¹r Recht and Ethik 67–79, Band 2 (1994). See also my “Retributivism, Moral Education and the Liberal State” 4 Crim. Just. Ethics 3–11 (1985), reprinted in Jeffrie G. Murphy, Retribution Reconsidered 15 (1992).
Michael Moore, “The Moral Worth of Retribution” in Responsibility,Character and the Emotions 179–219 (Ferdinand Schoeman ed., 1987).
For a rich discussion of various forms of liberalism and their bearing on theories of punishment, see Jean Hampton’s essay “Retribution and the Liberal State” J. Contemp. Legal Issues, Spring, 1994. See also Joseph Raz, the Morality of Freedom (1986); and Vinit Haksar, Equality, Liberty and Perfectionism (1979).
Moore is probably best interpreted as a perfectionist liberal.
Devlin never talks explicitly about fundamental rights as limiting democratic rule. I draw the conclusion that he holds that there are such rights, however, from some things he says about the free exercise of religion and from his claim that an environment of open discussion will give those who think of themselves as advanced thinkers on such issues as homosexuality an opportunity to change the shared morality that, before it is changed, may justify criminal prohibitions of what it condemns.
The analogy with free exercise of religion is, for better or worse, mine It does not occur in any of the opinions in Bowers v. Hardwick. I use it simply as an example of a liberty that is worth protecting, not primarily because of its social and political benefits, but because of its genuine value to those individuals who would exercise it. I use the phrases “genuine meaning” and “genuine value” because I have in mind an objective standard here. To protect religion as a fundamental right requires, in my view, that religion actually is an important human good¡ªnot merely that many people take a kind of personal satisfaction in being religious. (Religion is not protected because it is a great hobby.) I would argue in a similar way about sexual freedom¡ªthat those forms of it worth protecting at the level of fundamental rights must be defended as a part of a genuinely good, and not merely satisfying, human life I think that it is a serious business for the state to interfere with human satisfaction in any form, and thus I would want to require that the state have a good reason to justify such interference. I would not, however, wish to impose upon the state the extreme burdens of compelling state interest/least restrictive means unless a right identified as fundamental is being encumbered. I would save this test for liberties of the deepest importance.
Note the difference with Texas v. Johnson, 491 U.S. 397 (1989). In this flag burning case, several justices who upheld Johnson’s right to burn a United States flag made it quite clear that they believed that Johnson’s behavior was loathsome. They certainly did not conceptualize it as a part of a good life.
n Sexual Desire,Roger Scruton argues that male homosexuality is perverted (in the sense of incomplete or deficient) because it fails to embrace the mystery and risk of coming to terms with someone who, since of a different gender, is totally other. Roger Scruton, Sexual Desire (1986). There is, of course, no necessary disutility or rights violation in conduct that is perverted in this sense, and thus theories of rights or justice or utility would see such perversion as morally irrelevant. Theories of virtue, however, might regard it as highly relevant. I mention Scruton here not because I agree with him (I am by no means sure I even understand him) but simply to illustrate the possibility of having a debate on the virtue of homosexuality that is not based on religious dogma.
I have argued that Kant, in his essay “Theory and Practice” held this view about the free exercise of religion. See my “Kant on Theory and Practice” Nomos 36, edited by Ian Shapiro and Judith Wagner DeCew, New York University Press, 1995.
Hart, for example, wants to supplement the harm principle with a principle of justified paternalism. Hart,supra note 1. at 30–34. Paternalism, of course, is coercing a person for his own good, and it is difficult to see (as Devlin points out) how Hart could develop a concept of a person’s “own good” that did not draw upon the very non-neutral conceptions of the morally good or virtuous life that Hart seeks to oppose in other contexts. See also the rich accounts of punishment developed in Herbert Morris, “A Paternalistic Theory of Punishment” 18 Am. Phil. Q. 263 (1981), and Jean Hampton “The Moral Education Theory of Punishment” 13 Phil. Pub. Affairs 208 (1984). As I have argued in “Retributivism, Moral Education and the Liberal State” supra note 24, I think that Morris and Hampton are on to some very important insights in these essays. What is not so clear to me, however, is the degree to which these insights are compatible with political liberalism.
This rejoinder is responsive to the comments as presented at the conference by Professors Hampton and Morris.
See also my forthcoming essay “Moral Epistemology, The Retributive Emotions, and the `Clumsy Moral Philosophy’ of Jesus Christ.” The tension I cannot resolve is that explored in the section of the paper dealing with fundamental rights.
This essay was prepared for presentation at a conference honoring Joel Feinberg held at the University of Arizona College of Law on September 30-October 1, 1994, and I dedicate the essay to him with esteem and affection. My commentators were Jean Hampton and Herbert Morris. I had hoped to revise the paper in the light of their comments and the comments of others who were kind enough to read and discuss the paper with me. Unfortunately, I can see no way to make extensive changes in the paper that would not undercut the essays by my two commentators¡ªessays that will also appear in the memorial issue. Thus I see no fair course except to publish here the paper pretty much as it was presented at the conference, making only those changes that, in my judgment, could not have a bearing on the essays by Professors Hampton and Morris. I received very helpful comments from the members of the Arizona State University Moral, Political and Legal Philosophy Discussion Group and from Professor Robert P. George of Princeton University. Some of these persons made comments that deserved treatment in the paper, and I hope that they will realize that my failure to deal with them is not based on a failure to appreciate their merits but rather on the logistical problems outlined above. They will no doubt see their influence in my future work. Even in the present version, the influence of Robert George is obvious. His book, Making Men Moral: Civil Liberties and Public Morality (1993), and the comments he made on this essay have, I must admit, increased my nervousness about my commitments to liberalism.
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Murphy, J.G. (1998). Legal Moralism and Liberalism. In: Character, Liberty, and Law. Library of Ethics and Applied Philosophy, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9066-2_6
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