I have been thinking for a while about what I want to write for the first edition of the Carnival of the Citizens. On the one hand, there are about a jillion topics one could write about, and on the other, they are all complicated, and writing about them in a spirit of reflection and deliberation requires navigating some of the complexity.
The Proceedings and Addresses of the American Philosophical Association regularly publishes addresses given by the Presidents of its three divisions; and one of those in the most recent issue was Jeffrie G. Murphy's "Legal Moralism and Retribution Revisited." The address will also appear in the inaugural edition of the journal Criminal Law and Philosophy. So I thought I'd summarize part of the argument of the article, and use that as a springboard for my own thoughts about society and the common good.
The article tells the story of Murphy's intellectual journey on the subject of punishment, and starts in the mid-sixties with the then-dominant debates in philosophy of law: the debate over legal moralism, and the arguments over the degree to which accounts of punishment based on the notion of retribution were consistent with accounts of punishment based on consequentialism. I'll be setting the latter aside in order to focus on the former.
The debate over legal moralism had at its core the dispute between Lord Patrick Devlin and Herbert Hart over the role that coercion could play in society. In his lecture, "The Enforcement of Morals," later expanded into the 1965 book of the same name, Devlin criticized what is often called the harm principle, a key liberal idea going back to John Stuart Mill in On Liberty. The harm principle, roughly stated, is:
A society is not justified in coercing any of its members unless it does so to prevent clear harm (violation of rights) to others.
Devlin argued that, on the contrary, it was legitimate to use criminal law to enforce the norms and morals of society. A society is united by its values, Devlin argued, and those who violate some of these fundamental values -- e.g., through certain forms of private sexual conduct -- are undermining society in a way analogous to treason. The analogy to treason, Murphy notes, was one of the weak points of Devlin's argument; Hart famously replied that the claim that private acts of consensual sodomy undermine society was on par evidentially with the claim that homosexuality causes earthquakes. (For further on this debate, see the SEP article on The Limits of Law.)
However, Murphy wants to point out that Devlin's argument, if we express it more cautiously and carefully, does carry some force. When people argue, for instance, that this or that sexual freedom erodes the nuclear family, they may be incorrect, but it's not a silly idea; it merits a careful weighing of the evidence to see if it is, indeed, so. (It does identify what at least arguably is a harm to society; it's more amorphous than that found in the harm principle, but it's no more so than (say) some environmental harms than we have come to accept as meriting the sanction of law.) At the very least, the harm principle alone doesn't give us a clear reason why the law should never be concerned with such a thing.
One of the problems with Mill's harm principle, Murphy notes, is that it doesn't take the trouble to assess the social and individual importance of the particular kinds of liberty involved. Mill himself recognized that not all liberties are equal; but this does not register in the harm principle itself. How important is one form of liberty (say, sexual liberty) compared to another (say, freedom from unwarranted search and seizure)? If a liberty is relatively important, it's obvious that the state should show it is protecting rights; if it's not, one might well ask why it's so important to show that harm is involved. (Perhaps an example might make this clearer: A national park is established, and rules, with the force of coercion, are established in order to keep it intact. What harm, what violation of rights, are these rules preventing? It's not a very obvious, or very strong, or very direct harm, although I think we could agree that preserving a national park for future generations is a good thing. But because the liberties that are curtailed or limited are relatively unimportant, most people think it is worthwhile, given what you get out of it.).
How would one go about defending the harm principle against an attack like this? Mill's original defense of the principle was utilitarian. However, the problem with this is that it is very vulnerable to the type of argument Devlin runs, which is also in its own way utilitarian -- Devlin just identifies different sorts of consequences as the relevant ones. So philosophers have attempted to find a principle or set of principles that yields the harm principle (or something reasonably close to it) without falling victim to this problem. A very common approach is to try to tie the harm principle to some principle of government neutrality; the idea behind this being that the government, out of respect for its citizens, should not take a stand on the nature of the good life, or, at least, not enforce a particular view of the good life. It should remain neutral.
Murphy argues, however, that a Devlin-inspired argument can show that this line of argument appears to be inconsistent with two other values that are commonly held by liberals: what he calls fundamental rights constitutionalism and character retributivism in criminal sentencing.
One of the features that we all tend to associate with a liberal society are bedrock rights that are woven into the constitutional framework of the government. Now, there are a lot of different possible rights. However, we always privilege some possible rights over others (e.g., by actually writing them into law or a charter of rights and freedoms). And the reasoning we tend to use in privileging some possible rights over others is that these privileged rights serve to promote some basic human good, helping people to live lives that are meaningful and worthwhile. Murphy gives the example of Justice Kennedy's argument for sexual liberty in the Lawrence v. Texas decision. The natural way to understand the argument is to see it as an argument that intimate sexual relations are a possible part of the core of a meaningful human life, one graced with respect and autonomy. This contrasts with, say, the right to have jet skis; which is a liberty we tend to think derivative and recreational rather than fundamental. If this line of reasoning is to be accepted -- and it is difficult to imagine how we could go without the distinction between fundamental and derivative rights, however fuzzy it may sometimes be -- this is an argument against any principle of government neutrality.
A further problem arises with the problem of the role of character in sentencing. We often want to reduce the sentences of criminals who show genuine remorse and repentance; or, at the very least, we want to be able to take them into account when determining such matters. It's clear, however, that this introduces a matter of purely personal virtue and vice into law. The remorse and repentance of the criminal generally doesn't contribute much to society at large; it's a good, but it's not what we would usually call a public good. But once we let the door open for considerations of personal virtue and vice, it's difficult to find a principled way to stop. If nothing else, the person who wishes the law to take into account things like malice, repentance, lack of remorse, or anything like it, can't treat "Criminal law should not consider matters of personal virtue and vice" as a general principle, because such a person has conceded that some matters of personal virtue and vice should be considered in criminal law. What is more, they have conceded that people sometimes should be punished in cases where there is no victim and no rights violated -- for a purely victimless point of morality -- because they have admitted that an unrepentant criminal may be treated more harshly merely because of his lack of repentance than a repentant criminal. And if that's the case, both the principle of state neutrality and the harm principle seem to be out.
That's the part of Murphy's argument I wanted to summarize; I'll continue in another post with my own rough thoughts.