## 1. Legal Moralism: Formulation and Structure



Legal moralism is an initially simple and natural position to take in
delineating the legitimate boundaries of the legal use of coercion. At
its heart is a strong link between moral wrongdoing and legal
(especially criminal) wrongdoing. In the 1960s Herbert Hart applied
the label "legal moralist" to his intellectual sparring
partner, Lord Patrick Devlin, and the label stuck (Hart 1963; Devlin
1965). Devlin's account, which we come to below, has led to
numerous responses; beyond Hart himself a sample might include: Rostow
(1960), Ronald Dworkin (1965), Ten (1972), Feinberg (1987), Kane
(1994), Jeffrie Murphy (1999), Gerald Dworkin (1999), Kekes (2000),
Nussbaum (2004, 2010), Wall (2013). While many of the responses to
Devlin have been heavily critical, the approach is alive and well and
continues to develop in the hands, among others, of self-declared
legal moralists, such as Michael Moore and Antony Duff (Duff 2016: 96,
2018; Moore 1997, 2014) and in writers who seem at least broadly
favourably disposed (Tadros 2016a: 169-170). Something akin to
it is also found implicit in a vast range of legal writing.



Legal Moralism is often formulated in terms of immorality as a
*sufficient* condition for legal coercion. Hart asks whether
the fact that conduct is immoral is "sufficient to justify
making that conduct punishable by law?" (Hart 1963 [1982:4]).
Larry Alexander similarly defines legal moralism as "the
position that immorality is sufficient for criminalization"
(Alexander 2003: 131). Joel Feinberg--mindful of the possibility
that a legal moralist might want to excise from the picture certain
kinds of immorality--defines legal moralism without mention of
sufficient conditions:



> 
> 
> it *can* be morally legitimate to prohibit conduct on the
> ground that it is inherently immoral, even though it causes neither
> harm nor offence to the actor or to others. (Feinberg 1984: 27,
> emphasis added)
> 
> 
> 



However, Hart's and Alexander's formulations are at best
misleading as characterizations of legal
 moralism;[1]
 and Feinberg's is incomplete by the measure of his own
formulations of rival positions. What both leave out is the important
point that immorality or wrongdoing is generally taken by legal
moralists to be a *prima facie* or *pro tanto* ground
for the imposition of legal coercion, subject to potential defeat by
other
 factors.[2]
 That certain conduct is by common standards immoral gives the
society, in Devlin's view, "prima facie right to
legislate" (Devlin 1965: 11). The immorality is certainly a
valid reason for criminalization, but such a reason will fail to be
conclusive if unable to override a series of potential defeating
factors that Devlin outlines. Accordingly, the



> 
> 
> appointed law makers of society have the duty to balance conflicting
> values...and to form a judgement according to the merits of each
> case. (Devlin 1965: 117)
> 
> 
> 



Devlin identifies a series of "factors which should restrict the
use of the criminal law", even where an immorality or moral
wrong has been identified (Devlin 1965: viii). Balances must be struck
as between "factors of principle" and "factors of
expediency" (we examine some of these in the next section).
Hence it will often be the case that the posited wrongness or
immorality will *not* be a sufficient ground for legal
coercion.



As far as Feinberg's formulation is concerned, it is perhaps
revealing to contrast his formulation of the harm principle (which we
discuss below in
 section 4)
 with his formulation of legal moralism cited above.



> 
> 
> *Harm to others*: It is always a good reason in support of
> penal legislation that it would be *effective* in preventing
> (eliminating, reducing) harm to persons other than the actor (the one
> prohibited from acting) and that there is probably *no other
> means* that is equally effective at no *greater cost to other
> values*. (Feinberg 1984: 26, emphasis added)
> 
> 
> 



In formulating his harm principle, Feinberg is careful to qualify his
central claim with conditions relating to what would be
"effective" and of what the "cost" may be to
"other values". Not so, however, when he formulates legal
moralism. This may be no more than an oversight. However,
considerations of the sort--potential
"effectiveness", "cost to other
values"--are central to legal moralists as will be seen in
the next section (Devlin 1965; Moore 1997: 663-665). Stressing
these, as regards the harm principle, but omitting them, as regards
legal moralism, leaves the unfair impression that the former has a
subtlety and a realism that the latter lacks. Furthermore,
Feinberg's formulation makes wrongdoing or immorality sound like
something of an afterthought or a factor of only marginal importance
to the criminalization question. The legal moralist by contrast sees
wrongdoing or immorality not as marginal or in play only after harm
and offence have had their due, but as central or pivotal. Wrongs, as
Devlin would have it, "shape" crimes. Of the best
known--murder, rape, battery, theft, fraud, arson--so called
*mala in se*--we should say "a moral idea shapes the
content of the law" (Devlin 1965: 27). It is true, the moralist
will say, that while these crimes are shaped by morality, the criminal
offence of, say, murder is not identical to the moral wrong of murder
as law will import various other requirements, of legality and so on;
for example the law



> 
> 
> must trim the edges so that they present a line sharp enough for the
> clear acquittal or condemnation which the administration of justice
> requires. (Devlin 1965: 27)
> 
> 
> 



The wrongdoing is, however, essential. Hence the legal moralist takes
murder, fraud etc as ripe for criminalization because they are
wrongful. They may (or may not) be wrongful *because* harmful;
but from the fact that harms form a significant subset of wrongs, we
should not be tempted to put the cart before the horse. Harms matter a
great deal, but this is because they are often a kind of wrong. As
Devlin's fellow legal moralist Michael Moore puts it



> 
> 
> we care about harm to non-consenting victims because to cause such
> harms (and sometimes, to fail to prevent them) breaches our moral
> obligations. (Moore 1997: 649)
> 
> 
> 



If one were to revise Feinberg's definition of legal moralism so
as to be symmetrical with his definition of the harm principle one
would get something closer to the essence of the position: It is
(always or sometimes) a good reason in support of penal legislation
that it would be effective in preventing (eliminating, reducing)
wrongs and that there is probably no other means that is equally
effective at no greater cost to other
 values.[3]



Legal moralism, then, broadly comes in two parts, first, a wrong or
immorality is identified and, second, a set of countervailing factors
are considered; and considered with the aim of reaching an
all-things-considered-judgement on whether legal coercion should be
deployed. The wrong may be strong enough to see off the countervailing
factors, as the case may be, or the factors may be powerful enough to
defeat the wrong, all things considered. Thus, some wrongs will be
tolerable, according to this position, and some will be intolerable.
Beyond this core of the position, legal moralist accounts diverge
significantly. Moore takes a specific philosophy of punishment, a form
of retributivism, as an essential component of his account (Moore
1997). Duff argues that only a subset of moral wrongs should be
criminalizable--public, not private wrongs (Duff 2016, 2018).
Tadros, whose relationship to legal moralism is complex, also excludes
a subset of moral wrongs as potentially criminalizable, for example
"less serious wrongs committed in families" (Tadros 2016a:
131). Against this Moore accepts there is initially reason to
criminalize *all* kinds of morally wrongful conduct--even
breach of contract or treachery among friends--and leaves it to
the second part of the structure mentioned above, the countervailing
factors, to block the absurdity of criminalizing such conduct (Moore
1997, 2016). There is also considerable variation between legal
moralists as to how "morality" is to be understood.
Notably, Devlin's understanding of morality is widely rejected
by his successors. Below the flexibility of the approach will be
emphasized. We return to the question of how the
"morality" in "legal moralism" is to be
understood in
 section 3.


## 2. Legal Moralism: Restrictive Factors that Can Defeat *Prima Facie* Wrongs


### 2.1 Privacy



The defeating factors most heavily stressed by Devlin and Moore are
privacy and liberty (Devlin 1965: 16-20; Moore 1997:
76-78). As far as privacy is concerned, consider adultery and
fornication. Adultery remains a criminal offence in parts of the world
including certain US states (Rhode 2016). Devlin takes the
wrongfulness of adultery for granted, but nevertheless holds it
inappropriate to criminalize it. Jeffrie Murphy reaches the same
conclusion despite saying, along the same lines as Devlin:



> 
> 
> It does not strike me as absurd...to suggest that the sexual
> revolution of the 60s, and the resulting freedom many men felt to
> abandon their marriages and family responsibilities for sexual and
> other forms of so-called self-fulfilment, generated considerable
> social harm--particularly for women and children. (J. Murphy 2006
> [2012: 70])
> 
> 
> 



From considerations like this there may be a *prima facie*
ground to criminalize in some circumstances such moral wrongs, but the
conduct--all things considered--should not be criminal in
Devlin's view or Murphy's. The clumsy tool of legal
coercion is hardly likely to help remedy any wrongs here, not to
mention the undesirability of official surveillance of intimate
relationships.



The privacy concerns defeat any *prima facie* right. A legal
moralist position must attend closely to what is known about the
potential effects on privacy of the criminal law. Such a view would
find pertinent Lawrence Tribe's suggestion as to what the
question should be in *Bowers v Hardwick*--that is: not
the question of what Hardwick "was doing in the privacy of his
bedroom, but what the State of Georgia was doing there" (quoted
in Suk 2009a:
 689).[4]
 More recently Jeannie Suk has explored the relationship between the
criminal law and the value of privacy and intimate relationships.
Though not writing from any self-declared legal moralist perspective
the ideas illustrate the kind of balanced exploration that the legal
moralist seeks. The criminal law in many
jurisdictions--Suk's focus is largely on New York
County--showed, historically, a reluctance to enter the intimate
space of the home at the heavy cost of enabling domestic abuse against
women. This has been replaced in many jurisdictions, such as New York
County, by the criminalization in various guises of domestic abuse. An
improvement to be sure. However, Suk points to some complex resulting
tensions "between protecting women from intimate violence"
and respecting their "self-determination" (Suk 2009a:
690). Certain criminal law techniques, such as protection orders that
seek the end of an intimate relationship can amount, she claims, to
"state-imposed de facto divorce" (Suk 2009a: 685; 2009b)
and to various contexts in which "the particular desires of
individual women" do not "control" a particular area
of their intimate lives (Suk 2009a: 690). Suk's aim is not to
deny that the criminal law should be used to criminalize and enforce
specific laws against domestic abuse; the wrong (and harm) of domestic
abuse remains a ground for such intervention. It is rather to focus on
the delicate balances implied by legal enforcement of such wrongdoing
against the value of privacy, intimacy, and self-determination and to
evaluate certain specific legal techniques in the light of such a
focus. It has led to numerous responses (see Suk 2009a, which contains
reactions from eight commentators; on domestic abuse see also Friedman
2003, Dempsey 2009).



This approach to privacy is not one accepted by all legal moralists.
The usual two-part structure of legal moralism--the wrongs and
the countervailing factors--was noted above. Devlin and Moore
treat privacy as a potentially defeating countervailing factor, an
aspect of the second part of that structure as we have just seen.
Duff, however, treats it as a criterion to determine what counts as a
wrong before even reaching the question of countervailing factors, in
other words as an aspect of the first part of that structure. For
Duff, the criminal law is, or should be, limited to the definition and
declaration of *public* wrongs; wrongness, for him, "is a
reason for criminalization--but only if it is committed within
the public realm" (Duff 2018: 100). In insisting on this, Duff
is departing from Devlin's claim:



> 
> 
> that it is not possible to set theoretical limits to the power of the
> State to legislate against immorality. It is not possible to settle in
> advance exceptions to the general rule or to define inflexibly areas
> of morality into which the law is in no circumstances to be allowed to
> enter. (Devlin 1965: 12-13)
> 
> 
> 



The "private realm" for Duff--which he aspires to
define in advance, albeit not "inflexibly"--is
precisely an area of morality into which the (criminal) law is not to
be allowed to enter.


### 2.2 Liberty



As for liberty, "there must be", says Devlin,
"toleration of the maximum individual freedom that is consistent
with the integrity of society" (Devlin 1965: 16).
"Toleration" only arises in relation to conduct of which
one disapproves: toleration is not approval (Devlin 1965: 18; cf.
Oberdiek 2001; Green 2008). He gives two examples--cruelty to
animals and -the issue with which his view is most famously
associated--homosexual sex and, as he puts it, the "general
abhorrence of homosexuality" in the UK in the late 1950s and
early 1960s (Devlin 1965: 17). As regards both, his question is: are
they beyond toleration by the criminal law? Devlin's answer is
yes to the first and--although there is a widespread erroneous
view on this in the
 literature[5]--no
 to the second. In other words, liberty or freedom of human choice
cannot defeat the *prima facie* right of society to criminalize
cruelty to animals on grounds of its wrongfulness, but, in the case of
consensual homosexual sex in private, it can (Devlin, Birmingham et
al. 1965; cf. Devlin 1965: ix). On the latter issue, one might
certainly disagree (to put it mildly) with the claim that the
*reason* gay sex ought not to be criminalized is that it is
within the bounds of toleration, for that implies that such conduct is
morally wrongful in the first place. And one might also strongly doubt
the plausibility of Devlin's means of discerning where the
boundary of maximum individual freedom lies--turning both on how
*widespread* a moral belief is and on how *intensely* it
is felt and
 believed.[6]
 We will return below to these points when we consider how
"morality" should be best understood in legal moralism
 (section 3).
 The point for now is to illustrate the structure of a legal moralism
such as that of Devlin. In short Devlin took both animal cruelty and
homosexuality to be *prima facie* morally wrong, but took the
former all things considered to hold firm against liberty as a
potential defeating condition, and the latter to be defeated by
liberty (and other factors) when all things are considered. Moore in
his brand of legal moralism also stresses the place of liberty. In his
view, "there is always some reason not to legally coerce
behaviour, namely, that to do so diminishes the opportunities of those
coerced, diminishes the likelihood of autonomously chosen rightful
behaviour etc." (Moore 1997: 749; 2014).



There is a controversy here as to whether the *negative*
liberty which Moore explicitly invokes (and which Devlin assumes) can
ground the requisite *prima facie* reason against legal
coercion (for scepticism see Tadros 2016b: 79-82 and the
response in Moore 2016:
 352).[7]
 This raises the issue much explored in the philosophical literature
of the extent to which liberty should be understood as "negative
liberty" or "positive liberty" or some combination
of the two (Carter 2019). Negative liberty, as Ian Carter puts it,



> 
> 
> is the absence of obstacles, barriers or constraints. One has negative
> liberty to the extent that actions are available to one in this
> negative sense. Positive liberty is the possibility of acting--or
> the fact of acting--in such a way as to take control of
> one's life and realize one's fundamental purposes. (Carter
> 2019)
> 
> 
> 



Amy Baehr blocks out how the negative/positive liberty distinction
takes shape in liberal feminist writing, labelling approaches of the
former kind "classical-liberal feminism", and approaches
of the latter kind as "egalitarian-liberal feminism"
(Baehr 2021). As we saw in the previous subsection in relation to
privacy, it is a sign of the potential flexibility of a broad legal
moralist approach, that liberal-feminist accounts of freedom could
potentially be deployed so as to yield potential defeating conditions
for all-things-considered determinations in given cases of whether
legal coercion can legitimately be deployed to counter an identified
wrong. We touch on this issue again below
 (section 6.2).


### 2.3 The Crime Tariff



The legal moralist notion of defeaters--the conditions that can
potentially defeat a *prima facie* reason to impose legal
coercion on the basis of moral wrongdoing--should not be thought
of as closed, but rather as flexible and subject to evolution or
change. The notion fits comfortably with an established set of
considerations that have been developed since the 1960s, based on the
"crime tariff" and other mechanisms at work in the
criminal law (Packer 1964, 1968; Moore 1997: 664). The idea of the
crime tariff is that certain kinds of (perceived) wrongful behaviour
will be engaged in, one way or another, whether it is criminal or not.
That, of course, is not a conclusive objection to criminalization. If
it were, the criminalization of murder or theft would be ruled out.
However, if one looks at the predictable effects of criminalization of
given wrongful conduct, it may make matters still worse than staying
the hand of the criminal law. For one effect of criminalization is
that the price of products (for example dangerous drugs) or services
(for example sex work) will go up and will attract suppliers willing
to break the law systematically and introduce a plethora of criminal
gangs into societies, among other effects. The result may be worse
than leaving well (or quite bad) alone. Michael Moore, for example,
writes:



> 
> 
> Prostitution... does not go away by being legislated against, as
> the experience of all societies has shown. By making it criminal,
> however, the supply is artificially restricted to those willing to
> engage in criminal behaviour, so that prices and profits are such as
> to draw in organized criminal activity. (Moore 1997: 664; cf. Flanigan
> & Watson 2020).
> 
> 
> 



Devlin appeared to be anticipating this argument when pointing out a
factor that needed to be weighed in considering whether abortion
(which he appeared to assume was morally wrongful) should be, or
should remain, criminal. Abortions, in certain circumstances, will be
sought irrespective of whether the conduct is criminal. But, if
criminal, they will be performed by amateur, unskilled
"backstreet" practitioners, operating outside of legal
regulation. This renders the procedure dangerous in a way it would not
be if properly attested professionals were undertaking the procedure;
and punishment may seem appropriate for anyone causing or risking such
danger. However, the dangerousness of this conduct, said Devlin, is
"largely" based on the facts that "it is illegal and
therefore performed only by the unskilled" (Devlin 1965: 24).
This again yields a factor of potential relevance--even to those
who, like Devlin, believe abortion to be morally wrong. Whatever the
conclusion, such a consideration is a factor to be weighed in the
balance.


### 2.4 Self-Defeat and Other Forms of Defeat



There has been much research in the intervening decades on how
norm-subjects will respond to any potential use of the criminal law.
Will they endorse it, ignore it, seek to undermine it? All of this can
make a difference to the wisdom of criminalizing in the first place.
Tom Tyler has argued that to a large extent obedience to the law is
based on what is perceived by people to be legitimate and to be
respected. The extent to which people obey because threatened by legal
sanctions is, by contrast, exaggerated (Tyler 2006). Paul Robinson
stresses the need for laws to be made that do not stray too far from
the norms already accepted by the people. For if they do, the people
will not stigmatize the conduct, which may blunt or compromise the
effectiveness of the norms in question (Robinson 2000). Similarly,
legal officials may find various ways of underenforcing norms if they
stray too far from those generally accepted, again blunting their
efficacy. Bill Stuntz points to the phenomenon of
"self-defeating crimes" (Stuntz 2000). A series of factors
of the sort have most recently been examined by Jacob Barrett and
Gerald Gaus (Barrett & Gaus 2020). The idea of potential defeating
conditions is a highly flexible one, not a once-for-all set of
conditions with any rigidity; the list will inevitably change and
develop. A further issue of potential relevance to the question of
what conduct should be criminalized (and how) focusses on the
consequences of applying the criminal law in given areas. There is,
for example, a differential impact of the criminal law on some races
in many jurisdictions (Yankah 2019). One might add to a list of
potential defeaters the problem that enforcement of a given proposed
or current offence is not possible under current conditions in any
tolerably fair way. In the United Kingdom, for example, the politician
David Lammy has written a report on racial disparities across the
criminal justice system and proposed a principle for government of
"explain or reform": if governments cannot provide an
evidence-based explanation for apparent disparities, then reforms
should be introduced to address them (Lammy 2017).



The above discussion emphasized the legal moralist's defeating
factors because of their importance to the position and because, as we
have seen, legal moralism is sometimes misleadingly characterized
without reference to them. It was also noted that Feinberg holds such
factors to be of crucial importance to the version of the harm
principle he endorses. Such factors will surely be largely ecumenical
as between the rival approaches.


## 3. The Morality of Legal Moralism



As we have seen, Devlin took homosexuality and animal cruelty to be
morally wrongful and therefore his reason for supporting the
decriminalization of the first and the continued criminalization of
the second was that they, respectively, ought to be tolerated and
ought not to be tolerated (see footnote 5). Notably neither Devlin nor
Hart addressed the question of why--in virtue of what--can
it be asserted or denied that homosexuality is morally wrongful. For
Devlin that is hardly to the point, for "what the law maker has
to ascertain is not the true belief but the common
belief"(Devlin 1965: 94). By contrast Devlin's fellow
legal moralist, Moore, would take Devlin's support for
decriminalization of homosexual sex to be the right result for the
wrong reason; homosexuality, not *being* in any way morally
wrong, should not be criminalized for that straightforward reason; the
question of toleration should never arise (Moore 1997: 756; Corvino
2013; Pickett 2020).



Devlin's account is a moral relativist one. He relativizes what
is morally good to the beliefs of a given society (where "deeply
felt and not manufactured"; Devlin 1965: 17). The attraction for
Devlin of moral relativism was his belief that it would yield a
morality generally *of* the society subject to it, without
conceding "moral expertise" to any (elite) group of
persons. He seemed to assimilate the "rationalist
morality" he rejected to the views of an educated elite (Devlin
1965:
 91-92).[8]
 Since Hart's critique, few have found the relativist aspect of
Devlin's account convincing (Hart 1963 [1982: 17-24]).
Devlin's view appears to exemplify what Bernard Williams styled
as "vulgar and unregenerate" relativism (B. Williams 1972:
34, cf. Fricker 2013). Such relativism--as Williams paints
it--is composed of three propositions:



> 
> 
> 1.
> "right" means ... "right for a given
> society" [also presumably by the same token: "wrong"
> means "wrong for a given society"];
> 2.
> right[/wrong] "for a given society" is to be
> understood in the functionalist sense' [i.e., for the
> persistence of that society]; and that
> 3.
> (therefore) it is wrong for people in one society to condemn,
> interfere with, etc., the values of another society.
>  
> (B. Williams 1972: 34-39, numbering added; cf. the
> distinction between "positive morality" and
> "critical morality" in Hart 1963 [1982: 17-24])
> 
> 



As noted above, Devlin affirmed the first of William's
propositions. In industrialized societies, Devlin tells us, it is
generally true that monogamy "is built into the house in which
we live and could not be removed without bringing it down"
(Devlin 1965: 10). But this is merely a contingent truth and if our
houses were built differently--around polygamy--the content
of the law to be enforced could legitimately be the opposite of what
it is (Devlin 1965: 114). As for the second, it is equally clear that
Devlin understood wrongness "for a given society" in
"the functional sense" of what threatened the persistence
of that society. A society is constituted by its "common
morality" or "moral structure" or "public
morality" and its morality is as necessary to it as "a
recognised government", If a society's morality is not
sufficiently enforced the society will "disintegrate"; and
the society accordingly has a right to defend itself against attacks
on that morality (Devlin 1965: 10).



Devlin's "disintegration argument" appears fatally
wounded by Hart's initial criticism of it. As Hart puts it,
Devlin moves



> 
> 
> from the acceptable proposition that *some* shared morality is
> essential to the existence of any society to the unacceptable
> proposition that a society is identical with its morality as that is
> at any given moment of its history, so that a change in its morality
> is tantamount to a destruction of society. (Hart 1963 [1982: 51])
> 
> 
> 



The former claim is plausible if restricted to what Hobbes and Hume
characterized as the moral minimum essential for social life:



> 
> 
> rules restraining the free use of violence and minimal forms of rules
> regarding honesty, promise-keeping, fair dealing, and property. (Hart
> 1967 [1983: 258])
> 
> 
> 



If these ceased to be enforced, it is likely that a different and more
dangerous state-of-affairs would ensue; one might well say the
original society had disintegrated. Hart can afford to concede this.
Such a Hobbesian-Humean minimum is accounted for by the harm principle
Devlin rejects. Devlin's argument, however, needs the
disintegration thesis to apply more widely, potentially to every crime
of a community, be that to homosexuality, animal cruelty, bigamy,
incest etc (to "every jot and tittle" as Hart puts it:
Hart 1967 [1983: 258]). These need to be protected on pain of the
disintegration of society. Since Devlin gives no empirical evidence
linking the destruction of past societies with the non-enforcement of
their rules, this appears not to be an empirical
 claim.[9]
 But as a conceptual argument it is highly dubious. For as Hart
says



> 
> 
> Taken strictly, it would prevent us saying that the morality of a
> given society has changed, and would compel us instead to say that one
> society had disappeared and another one taken its place (Hart 1963
> [1982: 51-52])
> 
> 
> 



Only a claim of this strength seems able to support Devlin's
belief that *any* deviation from a society's shared
morality is an existential threat to it.



A different objection is this: to assimilate right and wrong with the
question of a society's survival assumes that the survival of a
specific society is necessarily good. It may be true that if certain
steps are not taken, the society will disintegrate. Apartheid in South
Africa disintegrated. What if by a more sustained enforcement of its
central racist elements it had managed to persist longer? Would this
continued existence be underwritten by a moral right? Does anyone now
owe the society the duty to restore the system or did such a duty lie
for a period after its disintegration? The suggestions are absurd. The
point of course is that some societies are so lacking in legitimacy
that it may be for the best that they disintegrate and are replaced.
Devlin goes too far when he says "What is important is not the
quality of the creed but the strength of the belief in it"
(Devlin 1965: 114). While his concern was the use of legal coercion
within a specific society rather than with criticism of other
societies, Devlin also appeared to hold to the third of
Williams' propositions above in seeking to exclude standards
external to the beliefs of the society. Legal moralism, then, surely
needs foundations other than those Devlin sought to provide.



This impression is buttressed by another concern about his account.
For what is the *status* and *basis* of liberty and
privacy, for example, in Devlin's account? As we have seen he
took them to be powerful enough to override certain immoralities in
determining what should be criminalized. But what if the ordinary jury
member or person on the Clapham omnibus just does not care that much
about privacy or liberty? What if, say, they take the view that
adultery should be criminalized never mind the very high cost to
privacy? Should privacy and liberty be simply downgraded as a result?
There is no indication that Devlin would accept such a conclusion or
even that the possibility occurred to him. Similarly, Devlin took it
that the law should be "perfectly impartial in matters of
religion" and this seems in no way sensitive to whether or not
the ordinary member of society endorses such impartiality (Devlin
1965: 62). He appears to take liberty and privacy and other defeaters
as safeguards applicable independently of whether ordinary people
would accept their validity. In this he appears to have been simply
inconsistent.



What alternative foundations could legal moralism have if
Devlin's brand of moral relativism is to be rejected? In the
light of Devlin's stress on wrongdoing as a *prima facie*
ground for legal coercion, one possibility might be an ethics of
*prima facie* duty associated with W.D Ross (Ross 1930; Skelton
2012). And of course, any of the other numerous theories of what makes
wrong action wrong--consequentialist, Kantian, natural law,
rights-based, virtue ethics--could potentially form such a
foundation (Timmons
 2013).[10]
 Michael Moore combines his legal moralism with a strong version of
metaphysical realism (Moore 1997). Presumably, however, such strong
metaethical commitments can be bracketed for the more specific
questions raised by legal moralism. Jeremy Waldron for example
suggests that an anti-realist or quasi-realist view, positing moral
truth, albeit based ultimately on subjective sources "inside our
own attitudes, desires, and natures", could serve as well as an
out-and-out realist view of Moore's variety (Waldron 1999: 171).
Again, while a legal moralist must surely reject a
"vulgar" relativist view of Devlin's stripe, it may
not follow that a more sophisticated moral relativist grounding for
legal moralism could not be attempted (Wong 2006; Rovane 2013;
Velleman 2015; cf. Fricker 2013). Indeed Duff's legal moralism
is alleged by others to contain moral relativist commitments, a claim
he himself rejects (Moore 2014: 199; Tadros 2016a: 121-128; Duff
2018: 232)


## 4. The Harm Principle



Far and away the best-known proposal for a principled limit to the law
is the "harm principle" from John Stuart Mill's
*On Liberty.* The pivotal sentence of its most famous passage
reads:



> 
> 
> the only purpose for which power can rightfully be exercised over any
> member of a civilised community against his will is to prevent harm to
> others. (Mill *On Liberty*, Ch. 1, para 9)
> 
> 
> 



*Harm to others*, can be contrasted with *moral
wrongfulness* or immorality--the legal moralist's
starting point; with *offence* to others; and with harm *to
persons choosing to engage in, or consenting to, the relevant
conduct* (anti-paternalism). At least as far as Mill's
canonical statement is concerned, moralism, offence and paternalism
are ruled out as legitimate bases for legal coercion. The State may
legitimately stop A from beating up B, thereby limiting his freedom of
action, because this prevents harm to B. And it may stop A from
stealing from B for the same reason. But the State oversteps its
proper limits on this view if it purports to stop A smashing up his
own property; or to protect C from the distaste she will feel knowing
that A is doing this. And it may not treat the wrongfulness of
conduct, in the absence of any unconsented-to harm, as a basis for
legal coercion: it may not for example prevent "bloody
gladiatorial contests presented by voluntary performers before
consenting audiences" (Feinberg 1984: 13). For the harm
principle, says Mill, is "entitled to govern absolutely the
dealing of society with the individual in the way of compulsion and
control" (Mill *On Liberty*, Ch. 1, para 9)



In his four-volume work, the *Moral Limits of the Criminal Law*
Joel Feinberg sets out to defend a version of the harm principle that
he takes to be firmly in the spirit of Mill (Feinberg 1984, 1985,
1986, 1990).



> 
> 
> *The Liberal Position*: The harm and offense principles, duly
> clarified and qualified, between them exhaust the class of good
> reasons for criminal prohibitions.
> 
> 
> 



This is compounded, first, of Feinberg's "harm to
others" principle stating, as we saw in
 section 1:



> 
> 
> *Harm to others*: It is always a good reason in support of
> penal legislation that it would be effective in preventing
> (eliminating, reducing) harm to persons other than the actor (the one
> prohibited from acting) and that there is probably no other means that
> is equally effective at no greater cost to other values. (Feinberg
> 1984: 26)
> 
> 
> 



But Feinberg goes beyond Mill's officially stated position in
adding, secondly, the offense principle:



> 
> 
> *Offense to others*: It is always a good reason in support of a
> proposed criminal prohibition that it is probably necessary to prevent
> serious offense to persons other than the actor and would probably be
> an effective means to that end if enacted. (Feinberg 1984: 26)
> 
> 
> 



Though this "offense to others principle" goes beyond
Mill's canonical position, Feinberg believed there to be support
in Mill's writings for the addition of offense as a ground and
in any case argued that there are independent grounds for thinking the
addition of the offense principle strengthens the Millian position.
The place of offense and relatedly "moral distress"
remains controversial and has inspired an extensive literature
(Feinberg 1985; Hart 1963 [1982: 46]; Waldron 1987 [1993]; Simester
& von Hirsch 2011: 99-140; Edwards 2019)



There is an important qualification to be made to Feinberg's
"harm to others" principle. One reason why one might want
to treat harm as special is the yearning for a concept for practical
use that is "simple, determinate" and "purely
empirical" (Feinberg 1984: 214). Such a determinate empirical
concept, if it exists, could function free of the controversies that
usually attend normative concepts. Everyone, from vastly diverse
cultures, philosophies and opinions could get behind it, without fear
of compromising what they hold dear. It is clear, however, that
Feinberg abandons any hope, if this ever was a feasible ambition, of
blocking out any such purely empirical notion. Instead he builds into
his harm principle a strong element of moral wrongfulness. As we have
observed, his harm principle is designed to *reject* moral
wrongfulness as a legitimating ground for legal coercion, but the
crucial qualification here is that it rejects wrongfulness *without
more* as a legitimate basis for legal coercion. Moral wrongs,
however, remain highly significant to the account. For harms
"produced by justified or excused conduct ('harms that are
not wrongs')" are said by him *not to count* as
"harms" for the sake of his harm principle. It is thus not
*any* harm to others that constitutes a good reason in support
of legal coercion. It is the harms that are produced by "morally
indefensible conduct" that matter (Feinberg 1984: 215). In other
words, the proponent of Feinberg's harm principle must be highly
concerned with moral wrongs and immorality, perhaps almost as
concerned as the legal moralist.



On the one hand, this allows Feinberg to deal satisfyingly with a raft
of potential counterexamples. Since, for him, a good reason for
coercion will present itself only if the harm in question is wrongful,
he can avoid designating as harmful setbacks to persons of the order
of losing a professional tennis competition or of being driven out of
business by a rival's superior product, even if the consequences
feel like, and are, terrible events in the lives of the individuals
concerned. Be they so terrible they are not harms in the relevant
sense for Feinberg, as they do not spring from any wrongdoing. On the
other hand, the necessity of a moral wrong in his account of harms
opens him up to potential criticism. For example, it might be claimed
that it is the wrongs that are doing the essential explanatory work,
while harm is a redundant or near-redundant addition. Or the strong
moral wrongness element in the account might be taken as a tacit
admission that the reason the relevant harms matter in the first place
is that they are morally wrongful; and if that point goes through, the
next question may be: why, then do wrongs that are not harms not
*also* matter enough to form, on occasion (and subject to
potential defeating conditions), a valid reason for legal
coercion?



Feinberg, however, is clearly Millian in his rejection of
paternalism.



> 
> 
> *Paternalism*: It is always a good reason in support of a
> prohibition that it is probably necessary to prevent harm (physical,
> psychological, or economic) to the actor himself and that there is
> probably no other means that is equally effective at no greater cost
> to other values. (Feinberg 1984: 26-27; Feinberg 1986)
> 
> 
> 



His strong anti-paternalism is not equally hostile to everything that
might be described as legal paternalism. He distinguishes "soft
paternalism" from "hard paternalism". In many cases
the forcible implementation of a person's will can accord with
his personal autonomy. Feinberg describes such cases as involving
"soft paternalism" and contrasts them with those involving
"hard paternalism" (Feinberg 1986: 26). It is the
"hard" variety that Feinberg sets himself against, the
forcible coercion of a person against her will for her own good. This
he rules out on grounds of legitimacy. In fact, he does not believe
that "soft" paternalism is really paternalism at all
properly so-called and so stops short of adding it to his list of
potentially legitimating reasons for legal coercion (G. Dworkin
2020).



Whether or not Feinberg broke significantly with Mill on the question
of offense, a much larger break with Mill is evident in the respective
defences of the harm principle offered by H.L.A Hart and Joseph Raz.
Speaking of Hart, Devlin observed that he "mutinied"
against Mill and "ran paternalism up the mast" (Devlin
1965: 132). Hart indeed accuses Mill of carrying "his protests
against paternalism to lengths that may now appear to us
fantastic" (Hart 1963 [1982: 32]). Furthermore, anticipating
parts of the "Nudge" movement that emerged fully this
century (Sunstein 2014), Hart speaks of



> 
> 
> a general decline in the belief that individuals know their own
> interests best, and to an increased awareness that a great range of
> factors which diminish the significance to be attached to an
> apparently free choice or consent. (Hart 1963 [1982: 32-33])
> 
> 
> 



Raz in turn speaks of his "ready embrace of various
paternalistic measures", asserting it is "senseless to
formulate either a general pro- or a general anti-paternalistic
conclusion" (Raz 1986: 422: Simester & von Hirsch 2011: Part
IV; Stanton-Ife 2020: 211-220). The issue of paternalism is of
considerable importance to the limits of the law, but for a deeper
discussion beyond the brief remarks just made see the entry on
 paternalism
 (G. Dworkin 2020; cf. Hurd 2018; De Marneffe 2018; Conly 2018).



Hence Hart and Raz defend a "harm principle", not a
"harm *to others"* principle. Both nevertheless
argue that it will often be the case that the state should not act
paternalistically, only not in such a way that an exclusionary
principle is merited. The dramatic differences between major
proponents of the harm principle makes it misleading to speak of
*the* harm principle as one principle, although one suspects
the term is too far embedded in the debate to be dislodged. Therefore
we continue to speak of the harm principle, though strictly speaking,
there is more than one. The table below illustrates the divergence in
the views of the leading thinkers associated with the harm principle.
No one of them has an account with conclusions identical to any of the
others (see also Edwards 2014). What unites them all is the rejection
of legal moralism.





A family of harm-principle accounts:
  

potentially legitimating grounds for legal coercion| Legitimate basis for coercion? | Harm to Others? | Offence to Others? | Harm to Self? | Legal Moralism? |
| --- | --- | --- | --- | --- |
| Mill | Yes | No | No | No |
| Feinberg | Yes | Yes | No | No |
| Hart | Yes | Yes, can be | Yes, can be | No |
| Raz | Yes | No[11] | Yes, can be | No |



## 5. What is Harm?



Proponents of the harm principle often proceed without supplying any
definition or understanding of "harm". Mill himself gives
no explicit general definition of what he means by the word,
satisfying himself with various examples, contextual stipulations and
hints:



> 
> 
> he seems throughout to think no further explanation is necessary, and
> to count on any literate speaker of English to accept his application
> of the word or of some proxy for it. (Brown 2017: 411)
> 
> 
> 



As we will see, other writers consider they can detect in Mill one or
more ways to define or understand the term. Perhaps, as well as
relying on general linguistic intuitions, one can simply cite paradigm
cases. These come easily to mind; harm as "broken bones and
stolen purses" as Joel Feinberg puts it (Feinberg 1984: 214).
Certainly, one harms others, on any folk understanding of the term, by
killing, raping, beating, defrauding, or stealing. But the ordinary
sense of harm may also suggest that a transitory pain is a harm and
may also have rather porous borders with other normative concepts such
as "wrong", May there, then, be trouble ahead developing a
sufficiently determinate, discriminating, and workable conception of
harm for purposes of applying the harm principle?


### 5.1 Other-Regarding Conduct



Various definitions and understandings of "harm" have been
offered. One derived from Mill takes harmful conduct to be
"other-concerning" or "other-regarding
conduct" and, conversely, harmless conduct is
"self-regarding" (Mill *On Liberty*, ch. 1, para
9). Accordingly, if some actions have no social consequences, they
affect only the actor and are therefore harmless. Hart seems
discomforted enough by "critics" of this Millian
suggestion to have been unwilling to adopt it himself across the
board. He surely had James Fitzjames Stephen's critique of Mill
in mind among others (Stephen 1873 [1993]). These critics, he
says,



> 
> 
> have urged that the line which Mill attempts to draw between actions
> with which the law may interfere and those with which it may not is
> illusory. "No man is an island"; and in an organised
> society it is impossible to identify classes of actions which harm no
> one or no one but the individual who does them. (Hart 1963 [1982:
> 5])
> 
> 
> 



Despite seeming to take Stephen's point against Mill, however,
Hart goes on to adopt the other-regarding/self-regarding understanding
in a limited context: so far, he says, as the "special topic of
sexual morality" is concerned there may exist a realm or area of
conduct that is harmless; here it does seem, "prima facie
plausible that there are actions immoral by accepted standards and yet
not harmful to others" (Hart 1963 [1982: 5]). It is not,
however, clear how this understanding of harm is to be reconciled with
Hart's other uses of the term. For example, he discusses
(sceptically) whether the "moral distress" of persons
occasioned by the moral wrongdoing of others should count as harm to
them (Hart 1963 [1982: 46]); cf. Waldron 1987 [1993]); and he asserts
that animal cruelty should be criminal, not *pace* Devlin to
"enforce a moral principle", but on account of animal
suffering. If there is a coherent way of bringing these various
understandings of harm together, Hart does not himself supply it.


### 5.2 A Setback to Interests



Another understanding of "harm" again takes its cue from
Mill, this time from his many references to the
"interests" of persons--for example: "insofar
as these concern the interests of no person but himself" and
"such actions as are prejudicial to the interests of
others" (Mill *On Liberty*, ch. 5, para 2). The important
distinction is not that which *regards* others versus that
which regards oneself. It is that which is in the *interests*
of others versus that which is in the interests of oneself. The
seminal essay for this reading is from 1960 by John Rees (Rees 1960;
cf. Saunders 2016), though Hart appears not to have been aware of it.
Rees paved the way for Feinberg's development of harm as
"the setback of interests". Hence, in addition to
Feinberg's addition of wrongfulness commented on above,
Feinberg's defines harm as "those states of set-back
interest that are the consequence of wrongful acts or omissions by
others" (Feinberg 1984: 215).



This Mill-inspired move of Rees and Feinberg, of defining harm in
terms of interests, smacks of defining one unclear concept in terms of
another unclear concept (Miller 2010: 119). The question of what is in
a person's interests--what is at stake for her--is
itself a question that requires considerable elucidation. In Derek
Parfit's terms should we understand "interests" in
"desire-fulfilment" terms, in "hedonistic"
terms, or in accordance with an "objective list" which
holds



> 
> 
> certain things are good or bad for people, whether or not the people
> would want to have the good things, or to avoid the bad things?
> (Parfit 1984: 499)
> 
> 
> 



Might one reasonably think that adjudicating the conflict between
hedonistic, desire-fulfilment and objective list understandings of
interests is an undertaking no less complex than the harm
principle/legal moralism conflict itself? Take an "objective
list" understanding of a person's interests. According to
Parfit this might include--as good for a
person--"moral goodness, rational activity, the development
of one's abilities" and so on; and it might
include--as bad for a person--being "deprived of
dignity" (Parfit 1984: 499). If this is always or sometimes the
best account of interests, the whole question of "moral
harm" that the harm principle aims to expel is potentially
reintroduced. The question of which account, or combination of
accounts, is the most compelling is very much a live issue (Fletcher
2016).


### 5.3 A Setback to Autonomy/Prospect Harm



Another influential understanding of "harm" is that
initially proposed by Raz: "To harm a person is to diminish his
prospects, to affect adversely his possibilities" (Raz 1986:
414; Gardner & Shute 2000; Simester & von Hirsch 2011; Edwards
2014, 2019). Harm is essentially understood not as a setback to
interests, but a setback to autonomy. Autonomy is essentially
understood as the ability to choose between an adequate range of
valuable options, while in possession of the appropriate capacities to
make such choices and while sufficiently independent of others. There
are plainly numerous ways one can set back such autonomy. The problem
of explaining why pain is harmful raises its head again. Many would
take the infliction of pain on another to be harmful, without waiting
to ask if the victim has suffered any setback in her ability to choose
between an adequate range of valuable options, which surely, she will
often not have done. And what of Devlin's case of harm to
animals? Devlin is likely to pop up at this point to repeat his view
that the reason we criminalize cruelty to animals is that it is
morally wrong and no potential defeating factor is strong enough to
overturn that judgement for purposes of criminalization. There is no
need to establish any harm in the first place. Hart, as touched on
above, while accepting harm must be part of the story, offered the
avoidance of "suffering" as the ground for criminalizing
animal cruelty. Setback to autonomy or prospect-harm, however, looks
like a non-starter, for animals, though beings that can be harmed, are
not autonomous beings, at least on any standard account. Similarly,
severely mentally disordered persons may in some cases lack the
capacity for autonomy, but it is plain as day that they can be harmed,
something the "setback to autonomy" or "prospect
harm" conception seems ill equipped to account for (Stanton-Ife
2010: 157-162; Tadros 2011).



One upshot of the varying, sometimes implicit, understanding of harm
is surely that anyone propounding an argument based on the harm
principle needs to be clear about how they are using the term
"harm". For the term may hide a host of questions that
themselves need to be resolved.


## 6. Foundations of the Harm Principle


### 6.1 Utilitarian/Consequentialist Foundations



Moving on from questions of definition, what are the foundations of
the harm principle? Mill, together with Jeremy Bentham and Henry
Sidgwick, was one of three giants of nineteenth century
utilitarianism. He declared utility to be the ultimate appeal on all
ethical questions. Speaking of his harm principle, he also
declared:



> 
> 
> I forego any advantage which could be derived to my argument from the
> idea of abstract right, as a thing independent from utility. (Mill
> *On Liberty*, ch. 1.11 [1993: 79])
> 
> 
> 



The harm principle sounds rather like the (foregone) stuff of abstract
right, so how is utility to give any support to the harm principle? At
first sight, the principle of utility looks like a straightforward
*rival* to the harm principle, not its sturdy foundation. Mill
held of the principle of utility that



> 
> 
> actions are right in proportion as they tend to promote happiness,
> wrong as they tend to produce the reverse of happiness. (Mill
> *Utilitarianism*, ch. 2.2 [1993: 7]
> 
> 
> 



This last formulation seems to counsel states to keep their options
open in their law-making. "Do what you can to reverse
unhappiness", the advice seems to be, "and do what you can
to promote happiness",



> 
> 
> Coerce to prevent harm to others if that will reverse unhappiness;
> coerce for some other end if that will equally do the trick.
> 
> 
> 



But as we have just seen, coercion to prevent harmless wrongdoing is
ruled out by Mill, irrespective of whether such an action is the
state's best bet for reversing unhappiness.



The path to reconciling the harm principle with utilitarianism is
often thought to be some form of *indirect* utilitarianism
(Gray 1996; Mulgan 2007: 117-119). The distinction is drawn
between a *criterion of rightness* and a *decision
procedure* (Mulgan 2007: 117-119). Thus, on this indirect
view the words "actions are right in proportion as they tend to
promote happiness, wrong as they tend to produce the reverse of
happiness" is not any part of a decision procedure; it is a
criterion of rightness. Sometimes, perhaps often, a criterion of
rightness will itself feature heavily in a decision procedure. But at
other times a decision procedure will not contain the supreme
criterion of rightness. Acting always to promote happiness or minimize
unhappiness may be self-defeating for various reasons or impossible in
the practical circumstances of ignorance that ordinary people face.
Over the course of a lifetime and across all the activities of a legal
system, more utility will be produced and disutility avoided if the
harm principle has the place Mill argues it has, despite the fact that
this will repeatedly require the sacrifice of some utility in day to
day legal dealings. Much of this, for Mill, relates to the importance
of human liberty to happiness (Gray 1996: 136). Demonstrating that one
can really derive something as strong as the harm principle ("to
govern absolutely") in this way is a formidable challenge. It is
subject, among other things, to scepticism about the workability of
the distinction between criterion of rightness and decision procedure
(Griffin 1994; Mulgan 2007). John Gray's book-long attempt to
spell out how the harm principle can be underpinned by indirect
utilitarianism came to be repudiated by Gray himself (Gray 1996:
postscript) . Contemporary consequentialism, however, continues to
flourish (Sinnott-Armstrong 2019); and many accounts of the harm
principle still see a form of utilitarianism as the best grounding for
the harm principle (Sumner 2004, 2011). Moreover, there are
non-utilitarian writers making related arguments in support of the
harm principle. Les Green for example argues that



> 
> 
> There can be reasons to promulgate, and attempt to conform to, an
> absolute norm even if the reasons that justify having a norm in that
> field are defeasible. (Green 2013: 191)
> 
> 
> 



Other accounts of criminalization maintain utilitarianism or a broad
consequentialism but conclude the harm principle must be rejected
(Petersen 2020a,b).


### 6.2 Perfectionist/Value-Pluralist Foundations



In recent years, value-pluralist perfectionism has been more
influential than utilitarianism as a foundation for the harm
principle, whether argued for explicitly or assumed (Raz 1986; Gardner
& Shute 2000; Simester & Von Hirsch 2011; Edwards 2014, 2018
[2021]). Joseph Raz's classic work *The Morality of
Freedom* contains a defence of the harm principle (Raz 1986; cf.
Raz 1989--other leading accounts of perfectionism include Hurka
1993 and Sher 1997). Raz claims that



> 
> 
> the autonomy-based principle of freedom is best regarded as providing
> the moral foundation for the harm principle. (Raz 1986: 400)
> 
> 
> 



At first sight this may be surprising, given the openness of
perfectionists to moral reasons in general, an openness that might
suggest legal moralism is its natural home so far as the limits of law
are concerned. Raz asserts that there is "no fundamental
principled inhibition on governments acting for *any* moral
reason" (Raz 1989: 1230, emphasis added). Even reasons that are
not "neutral", or not "public" or some such
are not in principle excluded by perfectionism (cf. G. Dworkin 2007).
Again: "It makes no sense to say of a state of affairs that it
is good, but that fact is no reason to do anything about it"
(Raz 1989: 1230). By the same token, presumably, one could substitute
the word "bad" for "good" in the previous
sentence and the proposition would remain accurate. Thus our starting
point is that the law should have available to it any moral reason and
has the function to promote the quality of life, including the moral
quality of life, of those whose lives and actions the government can
affect (Raz 1986: 415). This aspect of perfectionism is apt to make
some fear the oppressive imposition of styles of life on unwilling
individuals (Sher 1997: 106).



However, such alarmism cannot fairly be applied to a perfectionist
view such as Raz's. It is not that *anything* one might
describe, rightly or wrongly, as a moral reason will do. Raz's
concern is limited to states with "autonomy-respecting
cultures" and with what it is to live a good life in such
societies. The key, as the phrase "autonomy-respecting
culture" would suggest, is autonomy. It is a state's
primary duty in the relevant kind of society to promote, protect and
foster the autonomy of all *citizens*. This requires--on
Raz's account--furnishing all with, or preserving for all,
an "adequate range of valuable options". It also requires
seeing to it that persons have the appropriate mental and other
capacities to be genuine choosers in conditions of freedom and
independence (Raz 1986: 372-373).



Given, then, that Raz's starting point is that there is no
principled inhibition to the law deploying any valid moral reason, an
account is plainly needed of how that can be reconciled with his
support for the harm principle, a large part of the point of which is
to rule out certain moral reasons. But before coming to that, it will
be helpful to dwell on autonomy a little longer. In
 section 2.2
 above, the familiar distinction between two kinds of liberty,
negative and positive, and a similar distinction within liberal
feminist writing, were noted. Autonomy-based accounts plainly go
beyond negative liberty as the absence of obstacles, barriers or
constraints, and embrace the notions of positive liberty, in terms of
authorship (or part-authorship) of one's own life, ability to
choose between options, realize purposes within bounds as the case may
be. Furthermore, autonomy is often contrasted with heteronomy. As
Marilyn Friedman puts it,



> 
> 
> heteronomy...involves behaving or living in accord with what is
> in some important sense *not*, or *other than*,
> one's own. (Friedman 2005: 155, author's emphasis)
> 
> 
> 



There are at least two senses, as she continues, of heteronomy, one
whose sources "arise within the self, considered in abstract
social isolation;" the other whose sources "derive from
interpersonal relations and the treatment of a self by others"
(Friedman 2005: 155). The first sense is of course important. It
relates, for one thing, to the very real problems that can emerge when
an agent's "desires, emotions, passions, inclinations,
drives" are not in good order, or where the agent is addicted or
in the grip or a compulsion (Friedman 2005: 155). However, for all its
importance, Friedman argues that heteronomy in this sense has been the
"almost exclusive" focus in mainstream philosophy. The
sorts of heteronomy that are by contrast based on interpersonal
relations and the way some agents are treated by others, has been
largely neglected outside of liberal feminist circles, where
"relational autonomy" has received considerable attention
(Friedman 2005: 171; cf. Mackenzie & Stoljar 2000; Friedman 2003;
Stoljar 2018). This has led to the underplaying of such phenomena of
considerable importance to autonomy as male dominance. Interestingly,
Friedman explicitly cites Raz's account of autonomy as a rare
exception to the neglect by the mainstream of the social or
interpersonal aspects of autonomy ((Friedman 2005: 171).



Thus the criticism sometimes levelled at perfectionist accounts of the
good life, government or law, that they imply the oppressive
imposition of styles of life, looks unlikely to get much traction on a
form of liberal perfectionism, such as Raz's, with autonomy for
all so embedded in it. This, however, does not explain how an account
such as Raz's can explain its adoption of an anti-moralist harm
principle in tandem with its in-principle openness to all valid moral
reasons. In other words, how can one derive an anti-moralist harm
principle from a position that takes any valid moral ground as in
principle available to the state and the law?



Raz's answer focusses on the coercive *means* at the
law's disposal:


1. There are no principled limits to the pursuit of moral goals by
the law or the enhancement of the well-being of individuals on the
part of the law.
2. There are (nevertheless) limits to the *means* that can
legitimately be adopted in promoting the well-being of people and in
the pursuit of moral ideals (Raz 1986: 420; George 1993:
161-188).



His autonomy principle "permits and even requires governments to
create morally valuable opportunities, *and to eliminate repugnant
ones*" (Raz 1986: 417). It must, however, respect the harm
principle in doing this. It must not use *coercion* to
eliminate repugnant, wrongful opportunities if they are not also
harmful in the relevant sense. Coercive interference is a special
threat to autonomy. It often violates autonomy in two ways:



> 
> 
> First it violates the condition of independence and expresses a
> relation of domination and an attitude of disrespect for the coerced
> individual. Second, coercion by criminal penalties is a global and
> indiscriminate invasion of autonomy. (Raz 1986: 418)
> 
> 
> 



Let us consider both points, beginning with the second. In what sense
is the use of coercion a "global and indiscriminate invasion of
autonomy"? There is no doubt that sometimes it is.
"Depriving a person of opportunities or of the ability to use
them is", as Raz says, "a way of causing him harm".
Again "frustrating [a person's] pursuit of projects and
relationships he has set upon" can cause harm (Raz 1986: 413).
Raz alludes to the most common context for the invocation of the harm
principle, namely the criminal law. Much behaviour that is
criminalized is done under the threat of imprisonment and imprisonment
can cut off a *very* large range of options; or it can reduce
them considerably by various forms of disruption or destruction: of
family life, deep personal relations, work opportunities, pursuit of
valuable outdoor activities, political participation and so on.
Richard Lippke distinguishes between the material and the symbolic
dimensions of imprisonment. The symbolic dimensions relate to what
message the fact of imprisonment conveys to the public and to the
prisoner. The material dimensions break down into


1. restrictions on freedom of movement,
2. low levels of comfort and amenity
3. idleness, especially a paucity of opportunities for labour,
4. relative isolation from family members, friends, and the larger
community,
5. significant diminution of autonomy especially insofar as prisons
subject their inhabitants to a degree of bureaucratic control which
might be categorised as the "subservience of youth"
and
6. diminishment of privacy (Lippke 2008: 408; cf. Lippke 2007).



Though only one of Lippke's six material dimensions explicitly
mentions autonomy, all have some significant effect on it. Moreover, a
similar point applies to the compulsory detention in certain
circumstances of mentally disordered persons under the civil law. All
of Lippke's material dimensions can be present there too; and,
while the symbolic dimensions of a criminal conviction and punishment
are absent, the often-attendant stigma can compromise the autonomy of
the detained mentally disordered person in question still further
(Stanton-Ife 2012).



Raz, then, is right that coercion by criminal penalties can be
"a global and indiscriminate invasion of autonomy",
However, there seem to be two problems with this as a basis for
reconciling perfectionism and the harm principle. First, the scope of
the justification seems significantly limited; while the criminal
penalties *can* have such an effect, they often will not. For
there are many more forms of criminal law coercion in regular use than
imprisonment: fines, community service orders and electronic tagging
orders are three examples. These methods short of imprisonment can
affect options, without necessarily leaving the convicted criminal
short of an *adequate* range of valuable options--in
Raz's terminology; the assault on autonomy will not in most be
total or near-total. Take the last-mentioned example: the mandatory
wearing of electronic tagging devices. There have been several
high-profile cases of sports stars and other celebrities being
required to wear such devices. An early example is the English soccer
player, Jermaine Pennant. He broke into the first team of a top
professional team--the stuff that most English lads' dreams
are made of!--but, soon after, was convicted of a drunk-driving
offence. His sentence required him to wear an electronic tag but
allowed him to play in top division games with his tag under his
 sock.[12]
 Despite the cloud he was under he certainly did not appear to have an
inadequate range of valuable options. The argument at best seems to
support the deployment of the harm principle only where lengthy
periods of incarceration are deployed or threatened.



Raz does acknowledge that "other forms of coercion may be less
severe". However, he adds that



> 
> 
> they all invade autonomy, and they all, at least in this world, do it
> in a fairly indiscriminate way. That is, there is no practical way of
> ensuring that the coercion will restrict the victims' choice of
> repugnant options but will not interfere with their other choices.
> (Raz 1986: 418-419)
> 
> 
> 



Leaving the criminal law to one side, there are other legal contexts
where Raz intends the harm principle to apply where this argument
appears overstated. Consider tax. Of the operation of the harm
principle in relation to taxation, Raz writes:



> 
> 
> the measures I [support] avoid direct coercion for perfectionist
> causes. The coercion that they involve can be fully justified on the
> grounds of protecting and promoting individual autonomy. The simplest
> example is that of taxation. Taxation is coercive. It is justified in
> my view only inasmuch as it is useful for the promotion and protection
> of autonomy for all. (Raz 1989: 1232)
> 
> 
> 



Raz takes taxation to be coercive (indirectly) and argues it should be
raised only subject to the terms of the harm principle. But the
derivation of a perfectionist harm principle here cannot be based on
any "global and indiscriminate" invasion of autonomy,
because tax--except in extreme cases where imposed
oppressively--does not attack autonomy *that* hard and, if
suitably progressive, should leave the person taxed with her abilities
to choose between an adequate range of valuable options intact
(Stanton-Ife 2017). Of course, taxation, conceived in this way, does
not imply what Raz elsewhere describes as "a coercive imposition
of a style of life" (Raz 1986: 161). This seems to reveal that a
much more nuanced account of coercion, in its various manifestations,
is required, not that coercion "in this world" is always
"global and indiscriminate",



The second problem with Raz's (correct) observation that
coercion by criminal penalties can on occasion be "a global and
indiscriminate invasion of autonomy", is summarized in the
question "what follows when it is?" What *does*
follow, surely, is that such coercion must shoulder a large burden of
justification. What does not appear to follow is anything to do with
what *kind* of valid moral reason--be it harm-based or
wrong-based--should be doing the needed justificatory work. The
perfectionist starting point, as we have seen, is that there are no
principled limits to the pursuit of moral goals by the law. It is the
job of the harm principle to provide them if the harm principle can be
successfully derived. Pointing to global and indiscriminate coercion
points us to something that requires justification, but not yet to
what kind of justification is needed.



As noted above Raz has another argument for liberal
perfectionism's right to claim the harm principle for its own:
namely coercion



> 
> 
> violates the condition of independence and expresses a relation of
> domination and an attitude of disrespect for the coerced individual.
> (Raz 1986: 418)
> 
> 
> 



Might this argument make up the slack? Gerald Dworkin counters that
coercing someone based on their wrongful or immoral behaviour need not
show disrespect for such a person, "but merely for his
conduct" (G. Dworkin 2007: 447). Alternatively, if it be
accepted that coercion *is* disrespectful and expresses a
relation of domination, one might again ask why that is not true of
someone one coerces out of harming others as much as it is true of
coercing someone out of some morally wrongful conduct? In both cases,
does the legitimacy of the coercion not turn on the presence of
sufficient justification, be that harm-based or wrong-based?
Furthermore, if the key argument for the harm principle is really
based on respect for independence and opposition to domination, it may
seem particularly puzzling to identify how it is really a
*harm*-based argument at all. It is true that independence, is
for Raz, part and parcel of his understanding of autonomy (Raz 1986:
377-378); and it is also true that he understands harm in terms
of setbacks to autonomy. However, if the argument turns on
independence alone, the question arises of whether it does not
collapse into--or keep sufficient distance from--certain
principles devised in explicit opposition to the harm principle, such
as Arthur Ripstein's "sovereignty principle"?
Ripstein argues that conduct should not be legally coerced if it does
not wrongfully interfere with the sovereignty of others (Ripstein
2006: 231; for critique, see Tadros 2011).



Raz's "one simple reason" why "the harm
principle is defensible in the light of the principle of
autonomy", viz. that "the means used, coercive
interference, violates the autonomy of its victim" (Raz 1986:
418) runs into the difficulty that often coercion does not do that or
does not do that very significantly, let alone globally and
indiscriminately. Furthermore, where coercion does violate autonomy
globally and indiscriminately, it is either wrongful all things
considered or justifiable only on the basis of strong valid reasons,
which may include (exclusively) wrongness-based reasons for all that
is as yet established. Finally, to the extent that the argument turns
on independence it is not clear that harm is really doing the
work.


## 7. Public Reason



As we have seen, several leading legal writers--be they in favour
or against--continue to take Mill's harm principle in
original or modified form to be "the dominant theory as to what
limits on criminal legislation should be observed by liberal
democratic states" (Moore 2017: 461). Katrina Forrester's
post-war history of liberal political thought, however, emphatically
puts John Rawls, rather than Mill, at the centre (Forrester 2021); and
Piers Norris Turner, in an essay on Mill and modern liberalism, opines
that public reason liberalism--whose leading light is
Rawls--has become the dominant tradition within liberal thought
"over the past three decades" (Turner 2017: 576; cf.
Turner and Gaus 2017; Rawls 1999; Quong 2018; Hartley & Watson
2018; Freeman 2020). However, the growing and highly sophisticated
literature on public reason among specifically political philosophers
has not yet--at least not to the extent that it has in relation
to legal moralism and the harm principle--received the sustained
study of writers as heavily steeped in the law as Feinberg, Hart or
Devlin. Specific legal applications of the public reason approach are,
however, already in existence (for example Flanders 2016) and the
approach continues to develop.



The approach suggests a different limit of the law: that laws must in
some sense be based on *public reasons*, not reasons harvested
from, or based on, comprehensive moral, ethical or religious theories.
We saw above that while Devlin, Moore and Hart all supported the
decriminalization of gay sex, they did so on very different
understandings. Devlin did not rule out circumstances, admittedly
extreme ones, in which criminalization might be justifiable in virtue
of the intensity and comprehensiveness of the beliefs of ordinary
persons in a society. Moore and Hart, by contrast, did implicitly rule
out criminalization in such circumstances. Moore because the moral
*truth* of the matter is highly pertinent, indeed
*decisive*--there being nothing morally wrong with gay
sex--Hart, despite assuming the moral truth of the matter to be
*irrelevant--*gay sex is not harmful, so the conclusion
goes through whether such conduct is wrongful or not. Rawls for his
part would no doubt agree with all three on the correctness of
decriminalization. But he would seek to exclude, as did Hart and
Devlin, any Moore-style or perfectionist appeal to a comprehensive
moral understanding to determine the issue. Devlin for his part would
have had Moore down as one of the "moral rationalists"
whose views he wanted side-lined in favour of the reasonable
citizen.



In one way, then, Devlin anticipates a major preoccupation of Rawls.
Rawls did not, to be sure, take Devlin's apparent view that the
moral beliefs of a society *constitute* (its) moral truth. His
was not a scepticism about the existence of moral truth, merely a
determination to avoid "the zeal to *embody* the whole
truth in politics" (Rawls 1999: 132-133, emphasis added).
But both Devlin and Rawls demanded that political power and legal
coercion should be justifiable *to* those subject to them,
*provided* they are reasonable. Thomas Nagel similarly insists
a state's law must do better than just tell those with certain
conceptions of the good that they are mistaken, which seems the
implication of Moore's and of the perfectionist view; something
more must be offered to them relating, he argues, to the point of view
of such persons. According to him we must support:



> 
> 
> ... the exclusion of certain values from the admissible grounds
> for the application of coercive state powers. We must agree to refrain
> from limiting people's liberty by state action in the name of
> values that are deeply inadmissible in a certain way from their point
> of view. (Nagel 1991: 155)
> 
> 
> 



Devlin and Rawls, however, differed in how justification to reasonable
citizens should be spelt out and it is here that Rawls develops much
of his account. Devlin's model of the reasonable person was the
jury. To the question how the lawmaker is to ascertain the moral
judgements of society, Devlin answered,



> 
> 
> the moral judgement of society must be something about which any
> twelve men or women drawn at random might after discussion be expected
> to be unanimous. (Devlin 1965: 15).
> 
> 
> 



To insist, as both do, that justification must be targeted at the
reasonable citizen is to idealize the agreement on which their views
were based (Raz 1990 [1994]; Enoch 2013; Billingham & Taylor
forthcoming), since neither is saying one should simply seek the
acceptance of (all) the citizens as they are, reasonable or not.
Insisting on the actual agreement of citizens as they actually are is
likely to prove excessively demanding, since too much of the rough
must be taken with the smooth, accommodating misanthropic,
misogynistic, egotistical, anarchic etc views. Devlin does not
idealize a great deal, or at least he does not spell out in any detail
how he understands what "reasonable" means, beyond
insisting the reasonable jury-member must not hold
"irrational" beliefs, such as "homosexuality is the
cause of earthquakes" (Devlin 1965: viii). In stating one can
notionally pick "twelve men or women at random" he
appeared to think that a sample of the population is an adequate
pointer to the appropriate morality. Here there is a stark contrast
with Rawls. For taking a random sample of the population is to
underemphasise moral disagreement, as Rawls would see it. It is not
reasonable to think that moral disagreement will disappear in the
medium- or even the long-term. And much of this disagreement cannot
simply be blamed on the bloody-mindedness of some or on those biased
in favour of themselves, their families, or groups. Some of the
disagreement is based, rather, on differences over what evidence is
appropriate, how much weight should be given to the evidence where it
can be agreed upon, how priorities and choices should be made among
the vast range of possible values and so on. Rawls describes factors
such as these as "the burdens of judgment" (Rawls 1993:
56-57). Hence Rawls idealizes the constituency to whom legal
coercion must be justified *inter alia* as the persons who
accept the burdens of judgement and the resulting fact of reasonable
pluralism.



The idealization involved in the public reason approach is
controversial. There is scepticism in some quarters that there really
is any genuine "middle way" between "actual
(including implied) agreement and rational justification" (Raz
1990: 46). If too many constraints are built in, the very idea of
*justification-to* a given constituency disappears. The leading
natural law theorist John Finnis, writes:



> 
> 
> Natural Law theory is nothing other than the account of all the
> reasons-for-action which people ought to be able to accept, precisely
> because these are good, valid and sound as reasons. (Finnis 1996:
> 10-11).
> 
> 
> 



Natural law, theory, is a paradigm "comprehensive"
doctrine, however, precisely what is to be avoided in Rawls'
view. If justification-to ends up meaning only giving *good*
reasons to a certain constituency, the idea has all but
evaporated.



Another contrast with Devlin's members of the jury, is that
Rawlsian public reason is not simply a matter of getting a sample of
the people into a notional room and waiting for them to agree, however
that is to be done. Public reason is itself a substantive framework to
be shared by everyone, a module, "a complete political
conception" whose principles and ideals are to be elaborated and
whose arguments are to be deployed in legal argument (Rawls 1999:
138). It has content, in other words, "given by a family of
reasonable conceptions of justice" (Rawls 1999: 132). While, as
we have just noted, a natural law or Roman Catholic world view cannot
itself be adopted under public reason, its conception of the common
good or solidarity when "expressed in terms of political
values" can be one grounding for a political conception that
gives content to public reason (Rawls 1999: 142). For interesting
explorations of the relationship between religious comprehensive
doctrines and public reason, see, e.g., An-Na'im 2015,
Billingham 2021.



Two kinds of issue of special concern to questions of the limits of
law concern, first, the scope of public reason and, secondly, its
capacity to account convincingly for certain apparently easy cases of
legitimate legal coercion. As for the first, Rawls restricts public
reason to "constitutional essentials and matters of basic
justice" (Rawls 1999: 133). Is it convincing to thus limit
public reason? In the eyes of some Rawls is too permissive about
important matters of (non-basic) justice and fairness beyond the
constitutional essentials and the basic aspects of justice. Jonathan
Quong for example objects to Rawls' openness to perfectionist
values so far as "large resources to grand projects in the arts
and sciences" are concerned (Quong 2011: 281; Stanton-Ife
2020).



Secondly, how well does the public reason view handle certain
obviously legitimate uses of legal coercion, such as the
criminalization of murder and rape? While there is no doubt that a
Rawlsian public reason module, duly developed, would straightforwardly
deliver the bare bones of coercive laws against murder and rape, can
this be done fully and satisfactorily without the sort of recourse to
comprehensive moral and metaphysical doctrines Rawls wishes to rule
out? Take murder as an example. Standardly murder requires proof of at
least causation of death with an intention to kill and penalties are
among the severest, stretching in various jurisdictions to mandatory
life imprisonment or, in some, to capital punishment. But how is
"death" in "causation of death" to be
understood? It is common to understand it in terms of the cessation of
brain stem functioning. But why this understanding? For some putative
victim may have irrevocably lost the capacity for consciousness while
his or her brain stem continues to function. Is not the wrong of
murder truly captured not only when the brain stem ceases functioning,
but (possibly before that) when there is such "irrevocable loss
of the capacity of consciousness" (Persson 2002; De Grazia 2017:
4.3)? For, one might say, it is the latter that explains what is
horrific about murder. Someone who intentionally brings about the
permanent cessation of the brain stem functioning of another should
not be thought of as a murderer, the argument goes, where the capacity
for consciousness of the victim is already known to have been
irrevocably lost. Perhaps such conduct ought still to be criminal and
labelled as such, only not as murder meriting the mandatory life
sentence. The point for present purposes is not to settle the question
of what the best understanding of murder should be, or whether the
imaginary case should count as murder, only to suggest that these
issues are likely to turn, implicitly or explicitly, on comprehensive
moral and metaphysical understandings. Public reason will be
insufficient-or so the challenge would run (Tadros 2012: 77). Somewhat
relatedly is Rawls' account of abortion--he argues for a
"duly qualified right" on the part of a woman "to
decide whether or not to end her pregnancy during the first
trimester" (Rawls 1993: 243). Whether Rawls is entitled to this
conclusion on the basis of public reason has been hotly contested (see
the varying perspectives of George 1997 [1999: 209-213]; J.
Williams 2015; Kramer 2017: 92-155; Laborde 2018; Chambers 2018;
Arrell 2019).


## 8. Other Directions: Legality, a "Modal Kind" and Coercion



In the Introduction a distinction was drawn between conceptual and
evaluative questions about the relationship between law and morality;
and it was said that the limits of law is generally taken to be a
strictly evaluative question. The term "law" is generally
left largely unanalysed, with the emphasis on the law's coercive
means and the extent to which it may legitimately be deployed in the
pursuit of moral ends. But will be seen, there are some approaches
sceptical of the distinction's importance to our understanding
of the limits of law.



It is uncontroversial to say that a (further) kind of limit of law is
that contained in the idea of legality. Lon Fuller famously identified
eight "desiderata" for laws. Laws should be general; they
should be promulgated to their norm-subjects; and they should be
prospective. They should be understandable (perhaps with professional
help); the obligations they impose should be susceptible to being
jointly fulfilled; and they should not require anything beyond the
capacities of their norm-subjects. Laws should be tolerably stable
and, finally, they should actually be upheld by the relevant legal
officials, rather than ignored, bypassed or replaced by what the
officials applying them consider more congenial standards (Fuller
1964; Rundle 2012: Ch. 4; Waldron 2016 [2020]; Sunstein & Vermeule
2020). Kristen Rundle and Jeremy Waldron both argue that the legal
positivism of Hart and Raz, as well as a broader instrumentalism that
would take in
 Devlin,[13]
 is too casual and accommodating in allowing the designation
"legal system" and "law" to systems and norms
that fall short on the criteria of legality (Waldron 2008: 14; Rundle
2012: 202). This implies that one cannot simply take the question of
the limits of law to be an evaluative question. This would
underestimate the extent to which supposedly conceptual questions
about the existence of legal systems and laws are themselves
evaluative questions. Hence the limits of the law should be seen
squarely as both an evaluative and a conceptual question. Against
this, while granting that conceptual questions matter and are
themselves a large focus in the philosophy of law, one might wonder
how far they matter to the specific issue of the limits of the law. If
it is accepted for example that Fuller's desiderata for legality
or something close to them are indeed desiderata as well as to some
extent conceptual features of the law (as does Raz 1977), does it
greatly matter that one might conceive of such features as conceptual
*to a still greater extent*?



It is widely said by those sympathetic to the instrumentalist
understanding of law that law is a "modal kind" rather
than a "functional kind", distinguished by its means (or
techniques) rather than its ends; the moral legitimacy of such ends
being contingent (Green 1996: 1711). In the words of John Gardner:



> 
> 
> [T]o say that law is a modal as opposed to a functional kind is merely
> to say that law is not distinguished by its functions--by the
> purposes it is capable of serving. It is distinguished rather by the
> distinctive means that it provides for serving whatever ends it
> serves. Law is what Kelsen memorably called a "specific social
> technique" (Gardner 2012: 195-220, 207; cf. Kelsen 1941;
> Summers 1971).
> 
> 
> 



The idea of the *legal techniques*, developed by Robert
Summers, from both the positivism of Hans Kelsen and the
anti-positivism of Fuller, points however to a line of thought about
the limits of the law that is surely due a revival. The debate as it
is mostly prosecuted is too dominated by the one
"technique" of coercion. While giving coercion its due
Summers also emphasized



> 
> 
> educational effort, rewards and other incentives, symbolic deployment
> of legal forms, publicity (favourable or adverse), continuous
> supervision, public signs and signals, recognized statuses and
> entities
> 
> 
> 



and



> 
> 
> grants with strings attached. (Summers 1977: 126)
> 
> 
> 



There is also growing awareness at a theoretical level of the
importance of expressive values in the law (McAdams 2015). It is
something of a loss that the schema developed by Summers and his
collaborators, dividing legal techniques into
"grievance-remedial", "penal-corrective",
"administrative-regulatory", "public-benefit
conferral", "facilitator of private arrangements",
appears to have fallen largely into disuse (Summers et al. 1986). For
it allowed various areas of potential legal concern to be examined
against a background of various legal techniques, coercive and beyond.
Rawls' question of how far such techniques should be subject to
public reason is a further issue that might helpfully be pressed.


## 9. Conclusion



> 
> 
> The law's task, put abstractly, is to secure a situation whereby
> moral goals which, given the current social situation in the country
> whose law it is, would be unlikely to be achieved without it, and
> whose achievement by the law is not counter-productive, are realized.
> (Raz 2003 [2009: 178])
> 
> 
> 



This remark could be taken as the essence of legal moralism. The basic
core of legal moralism, as we have seen, is a two-part structure,
compounded of a wrong and a set of countervailing and potentially
defeating factors, such as liberty and privacy. From within legal
moralism there are controversies over how morality should itself be
conceived and controversies over how the first part of the structure
should be conceived--all moral wrongs or only a subset of
them?--and the second part--which countervailing factors,
for example, make the list? And what, if anything, unifies them? While
Raz's remark may serve as a pithy statement of legal moralism,
Raz himself rejected legal moralism, in favour of a version of the
harm principle. Mill's original harm principle was based on a
monistic utilitarianism. There remain adherents of such a
utilitarianism, but more influential today is some version of
value-pluralism, such as Raz's liberal perfectionism. The
derivation of the harm principle from such pluralistic premises, is as
we have seen, a far from straightforward task. Adherents of the harm
principle also manifest a strong divide between those who broadly
inherit Mill's principled anti-moralism without his
anti-paternalism, such as Hart and Raz and those who inherit both
Mill's principled anti-moralism and his anti-paternalism, such
as Feinberg. Into the mix comes Rawlsian public reason. Like one kind
of legal moralist, there is an emphasis on steering the justification
of legal coercion to the citizens subject to the coercion themselves
and from this an aspiration to develop a "module" of
political practical reasoning, the public reason of all subjects of a
given legal system independent of the comprehensive ethical or
religious commitments of some of their number. For the proponent of
public reason it is the "zeal to embody the whole truth"
that is anathema (Rawls 1999: 132-133). To legal moralists such
as Moore, the moral truth, with due sensitivity to the countervailing
factors, should rather be the point. The idea that the law has
sometimes no limits to hold back the moral truth--which of
necessity must lie in the mouth of some (fallible) human--can
induce a feeling of vertigo. Perhaps the question ultimately turns on
whether there is a genuine alternative.