Phil Reviewer Final Exam Notes On Feinberg PDF

## Notes on Feinberg Whereas Mills' Harm Principle deals specifically with harms Joel Feinberg argues that there is a class of cases that should be restricted or prohibited by law that do not cause harm to others, namely, offensive acts. His Offense Principle is designed to work together with Mills...

## Notes on Feinberg Whereas Mills' Harm Principle deals specifically with harms Joel Feinberg argues that there is a class of cases that should be restricted or prohibited by law that do not cause harm to others, namely, offensive acts. His Offense Principle is designed to work together with Mills' Harm Principle. Feinberg argues that Mill overlooked the class of offense cases and that offenses are different than harms. Feinberg's Offense Principle focuses on wrongfully causing offense. The emphasis is not on how the act was perceived, so it doesn't matter if someone took offense, nor is it on whether an offense was intended. Rather, the key question is whether a reasonable person would judge the act to be a wrongful offense. Determining what counts as what a reasonable person would say is wrongfully causing offense involves making a normative judgment. This is where ethics comes in. What is offensive for the purposes of the principle is not determined merely by a poll or survey. One must use judgment and defend decisions. This leads to Feinberg's bus where he encourages the use of your judgment to make determinations regarding wrongfully causing offense. This is important, Feinberg argues, because there are many cases where legislatures have failed to appreciate that offenses are generally less serious than harms, and where they have overreacted in legislating against offense. Feinberg argues that legal penalties for offense should be proportional and less severe than penalties deterring harm. ### Group Work Task Try to take Feinberg's "Ride on a Bus," as you do so, think about what makes each example different from the one that preceded it. Then consider which of the activities you would prohibit, and why. ## Legal Moralism Mills' view is that for an action to be immoral the harmful effects must outweigh any beneficial consequences. In contrast, traditional legal moralists, like Patrick Devlin, have not followed the Harm Principle but instead have tended to argue that society is justified in using the law to limit individual freedom beyond where Mill recommends, to enforce morals to protect society from decay and disintegration. Generally, Legal Moralism is the view that acts may be prohibited by the law merely on the grounds that they are immoral. Typical so-called "morals offenses" include adultery, fornication, sodomy, incest, prostitution, cruelty to animals, mistreatment of corpses, and desecration of the flag. Devlin makes three main claims: 1. **Society has the right to pass judgment on the matter of morals.** * **Argument:** * The existence of society requires a shared moral code. * What is essential to the existence of society cannot be left to individual judgment. * Therefore, society has the right to pass moral judgment. * **Public Morality:** The judgment of the reasonable man. * "Immorality… for the purpose of the law is what every right-minded person is presumed to consider immoral." The immoral acts that may be condemned by society are those that an ordinary person feels are beyond the pale - acts that invoke intolerance, indignation, and disgust in the mind of the ordinary citizen. 2. **Society has the right to use the law as a weapon to enforce a shared moral code.** * **Argument:** * Society has the right to make use of the law to safeguard its existence. * A shared moral code is necessary for society to exist. * Therefore, society may make use of the law to enforce a shared moral code. 3. **The use of the law to enforce morality is to be subject to the following three conditions:** * i. There should be the maximum individual liberty consistent with the integrity of society. * ii. The law should be slow to act to enforce new morals (since the limits of tolerance change, and it is easier to create a new law than it is to eliminate or alter an old one). * iii. As far as possible privacy should be respected (public interest in the moral order is to be balanced against the interest in privacy). In response, defenders of the Harm Principle would say that if there is no overriding harm, those acts shouldn't be illegal. ## PHIL 1149: Liberty-Limiting Principles Broadly speaking our concern is with Mills' question about the nature and limits of the power that can be legitimately exercised by society over the individual. More specifically, we are concerned with the rightful extent to which society can use the coercive power of the law to limit individual liberty. Our concern, then, is with identifying the rightful liberty-limiting principle or principles, or put another way, with justified coercion-legitimizing principles, especially with respect to the law. Following Joel Feinberg we will simply understand "liberty" as "the absence of legal coercion." Feinberg explains that A liberty-limiting principle is one which states that a given type of consideration is always a morally relevant reason in support of penal legislation even if other reasons may in the circumstances outweigh it. So conceived, the diverse liberty-limiting principles proposed by various philosophers, while distinct and separate, are nonetheless not rivals. More than one, and even all of them, could be true. He explains the sense in which liberty-limiting principles limit liberty with these remarks: When the state creates a legal statute prohibiting its citizens from doing X on pain of punishment, then the citizens are no longer "at liberty" to do X. The credible threat of punishment working directly on the citizens' motives makes X seem substantially less eligible than before for their deliberate doing. We can think of every possible act as so related to a penal code that it must either be (1) required (a duty), (2) merely permitted (one we are "at liberty" to do or forebear doing), or (3) prohibited (a crime). Where coercive law stops, there liberty begins. Feinberg identifies the range of liberty-limiting principles typically countenanced: 1. **The Harm Principle:** It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values. 2. **The Offense Principle:** 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. 3. **The Liberal Position (on the moral limits of the criminal law):** The harm and offense principles, duly clarified and qualified, between them exhaust the class of good reasons for criminal prohibitions. (The "extreme liberal position" is that only the harm principle states a good reason...) 4. **Legal Paternalism (a view excluded by the liberal position):** It is always a good reason in support of a prohibition that it is probably necessary (270) to prevent harm (physical, psychological, or economic) to the actor himself. 5. **Legal Moralism (in the usual narrow sense):** It can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm non offense to the actor or others. 6. **Moralistic Legal Paternalism (where paternalism and moralism overlap via the dubious notion of a "moral harm"):** It is always a good reason in support of a proposed prohibition that it is probably necessary to prevent moral harm (as opposed to physical, psychological, or economic harm) to the actor himself. (Moral harm is "harm to one's character," "becoming a worse person," as opposed to harm to one's body, psyche, or purse.) 7. **Legal Moralism (in the broad sense):** It can be morally legitimate for the state to prohibit certain types of action that cause neither harm nor offense to anyone, on the grounds that such actions constitute or cause evils of other ("free-floating") kinds. 8. **The Benefit-to-Others Principle:** It is always a morally relevant reason in support of a proposed criminal prohibition that it is probably necessary for the production of some benefit for persons other than the person who is prohibited. 9. **Benefit-Conferring Legal Paternalism:** It is always a morally relevant reason in support of a criminal prohibition that it is probably necessary to benefit the very person who is prohibited. 10. **Perfectionism (Moral Benefit Theories):** It is always a good reason in support of a proposed prohibition that it is probably necessary for the improvement (elevation, perfection) of the character * a. or citizens generally, or certain citizens other than the person whose liberty is limited (the Moralistic Benefit-to-Others Principle), or, * b. of the very person whose liberty is limited (Moralistic Benefit-Conferring Legal Paternalism) Principles 8, 9, and 10b are strong analogues of the harm principle, legal paternalism, and moralistic legal paternalism, respectively, that result when "production of benefit" is substituted for "prevention of harm." ## Mill's Harm Principle ### The Principle: "the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection." In other words, you can do whatever you like provided your exercising of your freedom does not harm anyone else, with the following exceptions. ### Exceptions: Mill argues that because we enjoy the benefits of cooperation, we are required to contribute to the common good even though doing so might restrict our freedom. So, he says, we are required to fulfill our civic duties like bearing witness in a court of law, and serving on a jury. Also, we are required to contribute to the defense of our state, at least in a just war. Finally, he claims that we also have general duties of beneficence (duties to help others for their good). ### Specific Rights: Mill argues that our rights to freedom consist of "first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological." They also include * freedom of expression and freedom of the press, freedom of action, and freedom of association. Taken together these liberties are necessary for "pursuing our own good in our own way". ### Mill's Defense of the Harm Principle: Mill's defense of freedom is based not on an idea of abstract right or some absolutist ideal but on the basis that upholding liberty leads to the best consequences overall.