Chapter 17: Legislating Morality
I. Morality and the Law
“Thou shalt not legislate morality.”
There are a lot of people who take this as dogma, particularly those who hold that there is no such thing as intrinsic value.
My view is that the criminal law, at least, should do nothing but legislate morality. If there is nothing wrong with a particular action — if no moral objection can be raised against it — then there should be no law against it.
I choose to express the opposing doctrine in terms of, “Thou shalt not legislate morality,” in order to highlight its greatest flaw. It contradicts itself. It demands that we write the moral doctrine into our laws that no moral doctrines be written into our laws.
Another way of expressing the same concern is to note that the question, “What ought the law to be?” (or ‘What is a just law?’) is a fundamentally moral question. The ‘ought’ here is a moral ‘ought’, and it cannot be answered independently of a theory of morality.
II. The Moral Limits of the Criminal Law
Given the popularity of this prohibition on legislating morality, I was surprised to discover, in one of my graduate student seminars, that one of the most influential contemporary authors in the philosophy of law wrote a series of books subtitled, The Moral Limits of the Criminal Law. The specific books in Joel Feinberg’s series were, Harm to Self, Harm to Others, Offense to Others, and Harmless Wrongdoing.
His subtitle recognized at the outset the very claim I assert at the start of this essay — that the limits placed on a fair and just government, the principles that determined how a good government ought and ought not to conduct its affairs, are fundamentally moral limits. If there were no moral limits on the criminal law, there would be no limits, and no distinction between unjust and just laws.
A. Harm to Others
Near the start of the first book, Harm to Others, Feinberg gave his definition of harm. In a long and complex analysis of the term, he defines ‘harm’ as the thwarting or setting back of an interest. Then he links the concept of ‘interests’ to strong and stable wants and desires.
A ‘hurt’, in contrast, concerns weaker desires. Having the law concerned with hurts would be like using a chain saw to carve miniatures in ivory; the tool was too large and unwieldy for such precise work.
Feinberg’s notion that claims about harm drew relationships between states of affairs and desires fits well into the general theory of value that I had been defending. Consequently, in my list of different types of value claims (e.g., illness, dangerous, beauty, obligatory, wrong) in Chapter 13, I use Feinberg’s definition of ‘harm’ largely as he presented it.
I enjoyed discovering that another reputable philosopher, besides J.L. Mackie, was putting my ideas to work. However, I found it a bit rude of Feinberg to be putting my ideas to use before I had even had a chance to think of them. He could have waited.
B. Legal Concepts
This examination of Joel Feinberg’s series also exposed me to a set of concepts that I had not yet encountered in my study of ethics that I could use to test the notion that morality was fundamentally concerned with desires.
For example, up to this point I had never even heard of the concept of ‘mens rea’. I had not paid any attention to the distinction between knowingly, willingly, negligently, and recklessly engaging in a criminal act. My thoughts about ‘diminished capacity’ and ‘the obligation to obey the laws’ had not been worked out.
This course gave me an opportunity to make up for those deficiencies.
III. Mens Rea
For most crimes, the prosecutor must not only show that an act took place, but also that the agent had the requisite ‘guilty mind’ (mens rea) in performing the act.
Even in cases where the proposition that the act took place was beyond dispute, the agent can deny that he is responsible for the action by using a number of widely accepted and legitimate excuses. He can, for example, claim that the wrong was an accident, or that he had made a mistake that anybody could have made. He might want to claim that he is serving a greater purpose, or that the alleged victim consented to the act in question. Finally, he can claim (or others can claim for him) that he lacked the capacity to understand what he was doing.
If I hold this set of legitimate excuses up to the moral theory that I had already been defending, I notice an important area of convergence. What all of these excuses have in common is that they break the link between what was done, and any implication that the agent did not have good desires. In other words, a legitimate excuse aims to show that, even though the act was of a type that a person with good desires would not have performed, the evidence does not allow one to draw the conclusion that the agent lacked the desires of a good person.
This gives support to the idea that morality, and law, are ultimately concerned with whether or not an agent has good or bad desires.
To see this in more detail, let’s look at each of these five areas of excuse.
A. Accident (and Negligence)
One of the ways to deny mens rea is to say that the bad thing that happened was caused, not by the agent and his desires, but by an outside natural force. That it to say, “It’s not my fault. It was an accident.”
A driver plows through a red light into a flock of pedestrians. We have the driver, sitting in his car, with the hood of the car wrapped around a lamp post, and a dozen or so pedestrians in various states of disrepair on the street behind him. There is no denying that the event that would normally be considered criminal (and wrong) has taken place. Plowing through a flock of pedestrians is something that a person with good desires would have sought to avoid. If the driver did not seek to avoid it, then he is evil, and may (must?) be punished.
The driver can escape this judgment by arguing that the unfortunate event is not at all due to his own bad desires (reckless driving). He does this by bringing forth possible causes that could have resulted in these same consequences regardless of what he, the agent, desired.
For example, “The breaks gave out on me.” This is the driver’s way of saying, “Hey, I have all of the desires that I should have, and none that I should not, and I know that a person with good desires would not have run into a dozen pedestrians. I tried to stop the vehicle by doing the things any reasonable person would have thought of to stop the vehicle. However, none of those things worked, because the brakes themselves were broken. In spite of my best efforts to prevent it, I hit them.”
One of the weaknesses with the accident defense is that a properly motivated person would take certain precautions to avoid accidents. If it is discovered that the agent had owned this car over a decade and never gotten the brakes fixed, then this suggests that the agent did not have the desires he should have had. Such a person would have ensured that his vehicle is in an appropriate state of maintenance that the chances of a brake failure are remote. If the driver has not performed the level of maintenance that a person with good desires would have performed, he is still guilty of a wrongdoing.
B. Mistake of Fact (and Epistemic Negligence)
Another defense that the agent may put forward is that he suffered from a mistake of fact. “When I served him the drink, I thought it was water. I had no way of knowing that it was acid.” Alternatively, “I had no idea that this building material was a carcinogen,” or “my medical diagnosis for this patient was wrong; however, given the evidence, just about any doctor would have said the same thing.”
These types of claims seek to break the link between outcome and desires on the grounds that the mistake of fact would have caused even a person with good desires to have performed the action under evaluation.
Of course, as with ‘accident’ above, we can still ask a further question of whether a person with good desires would have made the mistake of fact responsible for the bad consequences.
“I did not know that the gun was loaded,” is perhaps one of the most clichéd mistakes of fact. Yet, it does not mitigate the wrongdoing of accidentally shooting somebody. This is because all properly motivated persons are expected to be aware of the possibility of a mistake of fact, and act accordingly. He would never point a gun at somebody, even if he was certain that it is not loaded. The properly motivated person would never take such a risk, and the defense of ‘mistake of fact’ would not save him if he took the risk, and was proved wrong.
I discussed another form of epistemic negligence in detail in Chapter 5. There, I asked the reader to consider a driver who fails to secure a heavy loan on his truck. As a result of the failure, the load comes loose and kills others on the highway. This is clearly negligence, no different from failure to consider the fact that the gun might be loaded.
In Chapter 5, I argued that we have as much of an obligation to secure our beliefs, as the truck driver had to secure his load. Our negligent beliefs can easily cause us to support policies that bring about a great deal of needless suffering. When people base their decisions on policies on negligent belief, they may be able to get away with it – like the truck driver who kills occupants on another vehicle allowed to get in his vehicle and continue on his way. But, getting away with it does not make the action morally permissible. Harming people as a result of one’s unsecured beliefs is an example of a negligent act that does not carry with it the level of condemnation it should.
C. Higher Value
A person who harms another may be able to do so and show that this does not reflect poorly on his desires — even a person with good desires and full knowledge of all of the relevant facts would have done the same thing — by proving that the harm served a greater good.
Let us imagine that you are out fishing with your son. Your son gets stung by a bee, and you begin to see the first signs of an allergic reaction. Your son has minutes to live. Your car will not start. However, there is another car at the pull-off with the keys in the ignition. The owner is nowhere in sight. Your son is starting to choke. Do you take the car?
I would.
However, it would not imply ‘mens rea’ — it would not imply that I did not have the desires of a good person. This is because, even though a good person would have an aversion to taking and using property not his own, he would have an even stronger desire for the well being of his child. The second desire would override the first, and he would take the car.
Yet, the existence of the aversion to using property not one’s own would still manifest itself. First, the good person would have been motivated by the aversion to look for alternatives. If a third car and driver were present, he would ask them for help before taking the car. Furthermore, a good person apologizes for his failure to find any alternative, and would seek to make up for any loss that he caused the owner. He had to override his aversion to taking the car without permission, but that aversion would still exist, and motivate the agent to offer some form of compensation.
“I killed him in self-defense,” and, “We executed the prisoner in the name of justice,” are examples of trying to justify an action commonly thought of as wrong (killing) and casting it in the light of something that a person with good desires would have done. Even though the person with good desires would have had an aversion to killing, he would have also had a desire for things that made the killing necessary; a desire to protect innocent life, or a desire to deter other murders.
D. Consent
Many people hold to the notion of intrinsic prescriptivity in theory. Yet, in practice, they still accept principles that say that the best source of information for what is good for a particular person is not evidence of intrinsic merit, but evidence of what would fulfill the person’s desires. This is captured in the concept of ‘consent’.
It would make sense for a morality that ultimately evaluates desires according to their capacity to fulfill other desires to place high value on an aversion to performing actions against the will of another. The ‘other’ not only has the best information available on what will fulfill her desires, she is also the least corruptible agent in making sure that those desires are fulfilled.
Yet, even the best information available in the hands of the least corruptible agent can lead to a mistake, and the individual ends up worse off than she would have otherwise been.
For example, a movie producer needs a stunt performed. She knows that the stunt will be dangerous — so dangerous that she does not want to put her star (and the rest of the picture) at risk. Therefore, she hires somebody else to take the risk. Furthermore, by hiring this ‘somebody else’, she reduces the risk of anybody getting hurt, because the stunt performer is likely a practiced expert better able to prevent the potential bad consequences.
Yet, let’s assume the stunt goes poorly. Suspicious eyes get cast in the direction of the movie producer, because ‘something went wrong’ is at least prima facie evidence that somebody, somewhere, did not have the desires of a good person.
The movie producer, however, pulls out the waiver and says, in effect, “See, the stunt woman herself thought that the action in question was going to fulfill more of her desires than thwart them. She was wrong. If she, the expert, the professional, the most knowledgeable and least corruptible agent available, did not think that there was sufficient reason to not perform the stunt, then how could I have been in a position to disagree?”
We can still look at whether the movie producer gave the stunt woman the time and resources she needed to perform the stunt safely. Failure to do so could still provide evidence that the producer lacked a good person’s desires for the safety of others. This would make him morally culpable, at least in part, for the failed stunt.
Of course, consent requires that it is truly the case that the agent has the capacity to determine which course of action is most likely to fulfill his or her desires. The assumption that an agent knows best what will fulfill his desires is not true when children and mentally challenged individuals are considered. Lacking that capacity, somebody with greater knowledge needs to be empowered to make those decisions for the person in question.
E. Diminished Capacity
Diminished capacity is another way in which a person can claim (or others can claim on behalf of the accused) that there is a break between his or her desires, and some harsh consequences that a person with good desires would have wanted to avoid. The agent simply lacks the capacity to understand how the real world works, and that the bad consequences were a probable or even possible result of his or her action. He was too young to realize that pulling the trigger on the gun would cause a projectile to fly down the barrel at high speed and strike his friend, or that such high speed projectiles do significant harm when they strike a body.
Or, perhaps, the agent was aware of the dangers of a gun. However, because of diminished capacity, believed that the person standing there was a demon out to devour her alive. Perhaps she believed that her children are being hunted by a devil that will condemn them to perpetual pain and suffering, and that she must hide them from this devil in the only place she knows that they will be safe, in the arms of a loving God. So, she drowns them in a bathtub, knowing full well that the small amount of suffering now is better than the perpetual torment that she is protecting them from.
Her desires are still the desires of a good person. However, the belief formation structures of her brain are so defective that she forms beliefs that are significantly at odds with reality. She does exactly what a person with good desires would have done if those beliefs were true. What loving parent, faced with the knowledge that their child will suffer unending torture, would not be tempted to place that child where they could not be harmed?
Yet, the issues described under ‘mistake of fact’ apply here. Did the agent lack the capacity to discover the truth if she had wanted to? Did the fact that she did not question these beliefs betray a divergence between her desires and the desires of a good person?
F. Conclusion
This section seeks to illustrate that all of these aspects of mens rea seek to break the connection between some event that a person with good desires would want to avoid, and the implication that some agent did not lack good desires. Nature itself intervened in unforeseeable ways to bring about the unwanted consequences; taking control out of the Agent’s hands or holding some greater good hostage. In other words, the existence of the misfortunate consequences does not allow one to imply a defect in desire (a mens rea) on the part of the accused.
II. Just Law
A good law is a law that a person with good desires would support, and a person with good desires is a person who has those desires that tend toward the fulfillment of desires generally, and lacks those desires that tend to thwart desires generally.
A good law is not necessarily a law with the best consequences. This is because a person with good desires is going to desire a lot more than ‘the best consequences’. He is going to have a love of liberty, and an aversion to punishing the innocent. He is going to have a preference for the truth over lies, and an aversion to breaking promises. All of these desires will have some morally appropriate level of motivating force on the good person. All of them will have an influence on which laws she will support, and which she will not.
He may find himself opposing a law because it punishes the innocent. He may find himself supporting a law because it condemns those who are dishonest. These desires, in turn, tend to fulfill other desires. However, he is not supporting the law because of an interest in fulfilling these other desires. He simply has an aversion to punishing the innocent, and allowing people to be rewarded for dishonest.
None of these desires or aversions are absolute; any of these can be outweighed when another concern comes into play in sufficient strength. Thus, the desire for keeping promises (and respect contracts) might find itself outweighed by a stronger aversion to seeing harm done to the innocent, throwing support behind the idea that contracts to harm the innocent will not be supported. Nothing is absolute. Everything has weight.
A. An Obligation to Obey the Law
Is there an obligation to obey an unjust law?
Martin Luther King answered this in the negative. Or, more precisely, he stated that an unjust law not a law; it does not count as a law unless it is just. If the government demands that the black sit in the back of the bus, this is an unjust law, and the black has no obligation to obey it. Nobody has an obligation to do that which is wrong, or to submit to those who do wrong.
Yet, against this, some raise a concern over the violence and chaos that may result with each person deciding for himself which laws are just and unjust, and thus which laws to obey and which they may disobey. An aversion to breaking the law would be useful in preventing this type of chaos, with all of the desire-thwarting entailed within. Thus, they argue a desire to obey the law is good. We have a reason to create in ourselves and others an aversion to breaking the law – any law.
Yet, whether an aversion to breaking the law is good or bad depends essentially on the quality of the law that one has an aversion to breaking. Good laws tend to lead to more desire-fulfillment than desire-thwarting, but bad laws do not. An aversion to breaking all law can only be good if the law itself contains more good than bad; else an aversion to breaking the law (a willingness to report the Jews living next door or the run-away slave rather than hide them in one’s own cellar) thwarts more desires than it fulfills.
When I examined this question in my philosophy of law courses, it appeared to me that the question itself was slightly out of focus, and a slight adjustment could handle both sets of concerns.
There are two principles at play.
- There is no general obligation to obey the law. However, there is an obligation to obey good law; and there may well be an obligation to break the law (to promote justice over the will of the state where the state demands injustice) if the law is bad.
- With some exceptions depending on the nature and the structure of the society in question, and the ways in which its laws are made, there may be an obligation to presume that the law is just unless proved otherwise beyond a reasonable doubt.
A look at sodomy laws provides a way of distinguishing these principles from the principle that there is an obligation to obey all law.
The principle that a person has an obligation to obey all laws implies that those who practice sodomy where it has been made illegal should feel guilty, to some extent at least. They are criminals, and criminals are bad people.
However, the two principles I gave above imply that, since it can be shown beyond a reasonable doubt that sodomy laws are unjust, those who break them need not feel the least bit of guilt over their ‘crime’. They are, instead, the victims of somebody else’s wrongdoing. They have no more of a reason to feel guilty over failing to obey this law than for failing to thief who demands money at the point of a gun, or to obey the slave master or the inquisitor.
The reason for the obligation to presume that the law is just, depending on how the law is made, is because all of us are at risk of fooling ourselves into believing that a law that prevents us from getting what we want is unjust. When holding a gun, one is to act on the presumption that it is loaded even when one believes it is not, because the risks of being wrong are fairly high. When sitting on a jury, trying to determine if the accused is guilty or innocent, we are told to presume innocence. Accordingly, when evaluating whether a law is unjust, we should presume the law is just unless proved otherwise beyond reasonable doubt.
The strength of this presumption depends on the circumstances within which the law was created. If the law came into existence as a result of vigorous and open debate, where everybody had an opportunity to raise objections and have those objections answered, those who evaluated the law gave an impartial and reasoned evaluation of the evidence, approved the law in a system that allows for some accountability on the part of those casting the vote, then there is a case to be made in favor of a strong presumption that the law is good, even if the individual does not see it.
If, instead, the law was created with limited participation, among a small group of people who are in a position and of a mind of putting their interests above others, then there is a reason to question the justice of the law. In the worst of tyrannies, there may even be a presumption of injustice, and of laws worthy of being broken.
Ultimately, however, the quality of a law has nothing to do with its origins, but is determined entirely by its content. A benevolent dictator would, naturally, support only those laws that a good person would support. At the same time, a prejudiced and bigoted majority can vote into existence the most unjust and tyrannical laws. Inquisitions, crusades, racism, bigotry, slavery, and holocausts, all have been carried out to the cheers of significant majorities. Fed by their leaders on the candy that they were ‘the chosen people’, with a natural right of superiority, or caught up in a movement that abandons reason for faith, there is no limit to the evils that a majority can visit on a minority.
III. Legislating Morality
In Chapter 15, I wrote objections against rationalist moral theories — theories that hold that the right thing for an agent to do is what it is rational for the agent to do given the agent’s actual desires.
To understand the moral question, the rationalists ask us to imagine a person with both the interest and the opportunity to perform a harmful action — such as torturing a young child. Morality, to the rationalist, concerns whatever set of facts that we can give a person that may influence his decision to torture or not torture the child. Ultimately, the rationalist says that if it remains rational, regardless of the information we may give the agent, for the agent to torture the child — if we cannot give him a rational argument against doing this — then torturing the child is not wrong. They insist that such reasons can be given, but this seems doubtful.
I argued there that rationalists misconstrue the concept of ‘giving him a reason not to do so.’ They focus exclusively on belief-centered reasons, and take the agent’s actual set of desires as an unquestionable given.
However, the types of reasons that moral claims are actually concerned with are desire-centered reasons. Morality does not aim at giving the agent a belief-centered reason not to torture the child, but a desire-centered reason not to do so.
It does this in one of two ways:
- By attempting to improve all agents’ desires, mostly through the use of praise, condemnation, reward, and punishment.
- By threatening the agent with, “If you do this act, we will thwart some of your existing desires.”
The second type of reason is the reason provided through the criminal law.
Where society fails to provide the agent with the proper moral education, with the right set of desires, society still can look for another type of desire-centered reason to give the agent. Society can still say, “If you can’t find a reason within yourself for refraining from torturing that child, I will give you another reason to refrain,” while holding a large club in one’s hand.
Legal reasons — the reasons provided by the criminal law — are meant as a second line of defense in those instances where society’s attempt to provide an agent with better desires has failed. It functions specifically for the purpose of legislating morality.
A. Dangers
I can immediately see why somebody who is concerned with legislating morality would read what I have written with a great deal of concern. “Don’t tell them that!” she would shout at me. “If you say that, it will only encourage them. They will use what you say as an excuse to force all of us to live according to their morality. You are putting all of us at risk!”
I can see reason for this concern. However, I do not think that the concern is best addressed by promoting the clearly nonsense principle that, “Thou shalt not legislate morality.” Such an idea is so absurd that it makes those who promote it look like fools, and that gives those who would be ‘putting all of us at risk’ far more ammunition than they could get by somebody sharing the principle that criminal law should only enforce morality.
Those who are concerned with ‘us’ who are being put ‘at risk’ by those who would enforce certain types of morality still have the ability to challenge their so-called morals legislation in another arena. “These actions are not immoral. Your laws are prohibiting them are, in fact, wrong. Rather than legislating morality, you are empowering immorality. “
Which is more dangerous: (1) surrendering to the claim that these behaviors are immoral while asserting that moral considerations should be ignored in matters of evaluating law, or (2) attacking the absurdity that these behaviors are immoral while asserting that laws must be just to be worthy of being obeyed?
B. Caveat
There is one small grain of truth to the commandment “thou shalt not legislate morality”. It can be brought out with one small change. “Thou shalt not legislate ALL morality.”
Feinberg correctly argued that ‘harm to others’ is a legitimate concern of the criminal law, and ruled ‘hurt to others’ to be outside of the scope of legitimate moral concern. And, yet, this does not imply that ‘hurt to others’ is moral — that there is nothing morally wrong taking a little bit of money from a co-worker or destroying a less valuable piece of property.
The reason that ‘hurts’ are excluded from the list of legitimate concerns of criminal law is not that ‘hurts’ are not immoral, but that the law is a huge and unwieldy instrument that cannot be used in such fine detail. Attempting to use the criminal law to address every small hurt is like attempting to do calligraphy on the back of a post card with a mop.
Along these same principles, the law is charged with the task of making, what I remember once being described as, ‘bright lines in a field of gray.’ There is no law of nature that says that a person who damages $500 worth of property is so much more dangerous than the person who damages $499 dollars worth that the former shall be charged with a felony and imprisoned for years, while the latter is charged with a misdemeanor and given far less punishment. These distinctions exist in the criminal law because it cannot deal with fine details. So, like a digital camera that shoots an image with very few pixels per inch, the law shows lines between one area and the next that does not exist in nature.
Too often, I have heard people complain that because of the law’s inability to deal with some fine detail that the law should not exist at all. There is no significant psychological difference between a person who is 20 years and 364 days old, and one who is 21 years old that justifies punishing the former for alcohol possession and allowing the other the liberty to drink responsibly. Therefore, it is argued that the law is foolish and should be abandoned.
Yes, there is not much of a difference between what falls on one side of the law and the other. But, if we want to live in the real world, we sometimes have to make sharp distinctions for reasons that do not exist in nature.
I wish to note that I have other objections against the drinking age, and that the above argument should not be taken as a defense of this particular law. I use it as an example of a dividing line that many people are familiar with, and a bad argument that I have heard all too often. It is not inconsistent for a person to hold the position that “this law is stupid,” and “the reasons that some people give for getting rid of this stupid law are also stupid.”
Anyway, back to the main point, this is yet another example in which the unwieldy nature of the criminal law prohibits a tight fit between what should be illegal and what is immoral. It is another reason to believe that, while nothing should be made illegal that is not immoral, not all things that are immoral should be made illegal. Nor is there is clear and unambiguous line between the two that makes it easy to sort one example from another.
So, thou shalt only legislate (with respect to the criminal law) against immorality. However, thou shalt not sanction immorality with the power of law. Nor is it the case that thou shalt only make law that perfectly matches the demands of morality.
Some Random Musings
In writing this section, I was asking myself where the idea that ‘you cannot legislate morality’ comes from. When I attempted to do some research on this concept on the internet, I found a great many sites that attacked the concept without attributing it to anybody or making an attempt to get at what its defenders (whoever they might be) were getting at.
“Thou shalt not legislate against morality,” has become a public relations tool, through which deceitful people attempt to conjure imaginary demons or attribute demonic qualities to real people. I suspect that they do this so that the deceivers can score political points and harvest political power by victimizing those who they mischaracterize. These points are then used to create injustice and inflict harms and, worse, to use the tools of law — tools that should be reserved as instruments of justice — to inflict wrongs.
Harsh words? That is not a relevant question. “Incorrect?” That would be a relevant question.
An examination of many of the writings of those who protest the doctrine ‘thou shalt not legislate morality’ would support it.
There are many shapes and levels of deceit, and one of the most commonly practiced forms is to construct an imaginary position and attribute it to somebody else — the ‘straw man’. In asserting that others – the proverbial enemy – hold this monstrous view, the speaker or writer can generate hatred for others and followers for their own view.
This certainly falls into the category of ‘bearing false witness.’
It is no defense against this charge for the person conjuring this fiction to say that he really believed that this was the position of his opponent. This defense requires at least a good-faith attempt to determine if his accusation is true.
Any law that can only be defended by deceitful practices is unjust. Of course, I cannot make the inference that because deceitful practices were used in the defense of a law, that there is no non-deceitful defense to be offered. I am going to leave that question open and move on.
IV. Offense
I have a memory of sitting in the Philosophy Department Graduate Student office one day, when one of my students showed up. As a part of a class project (for a different class), she had been taken to a museum. There, she saw exhibits that provided a vulgar depiction of various Christian symbols, and she was in tears over having something she cared about so deeply treated in such harsh ways. She wanted to know the right thing to do. Her question to me went something like, “Doesn’t doing nothing in this case prove that there is no wrong in what he did?”
I asked the following question. “Assume that you were sitting at home on a hot summer day, with the door open, cleaning a gun. Just as you get the gun reassembled, with the clip nearby, a young boy charges into your open door, grabs a quarter off of a table, and runs off. You have the ability to stop him by shooting him. Do you shoot?”
“Of course not,” she answered.
“Does refusing to shoot the boy imply that taking the coin is okay? Or are you saying instead that the only way available to stop him from taking the coin is so harsh that it counts as a wrong in itself; a greater wrong than taking the coin?”
She agreed that it was the latter.
Offense functions the same way. The person offended does suffer some thwarting of desires, so an aversion to offending would be a good thing. This is another way of saying that it is wrong to offend — at least to some degree. It may be a wrong that can be easily outweighed by other concerns.
In this case, history has shown us that if the governments are empowered to suppress ideas, they suppress truth more often than fiction, and suppress dissent most of all. Therefore, it has been argued that ideas are not to be restricted, no matter how offensive they may be. The offense is a wrong often enough, but making offense illegal does more harm than good. We must deal with offenses through ways other than by using the heavy and awkward weapons of the law.
In such a case, preventing the lesser wrong is only permissible by performing a greater wrong.
A. A Matter of Principle
Ultimately, the question of offense becomes two questions.
(1) Is it immoral to offend another?
(2) If it is immoral to offend, then is the large and unwieldy weapon of criminal law the appropriate tool to use against those who offend?
Since value can only be found in the fulfilling or thwarting of desires, and offense certainly thwarts desires, they contain some wrong. We may begin by thinking in terms of an offensive smell. A neighbor places something in his back yard having the aroma of a dead animal (though it does not pose a health risk). In other words, it stinks. The stench thwarts the desires of those who smell it. Where desire thwarting is going on, something bad is happening. If the smell is very bad, the desire-thwarting is bad as well.
It is not moral to offend others.
The example of the rotting carcass smell also brings up an answer to the second question. An offense (in the form of an offending smell) can be so great that the mechanisms of law and the courts are perfectly legitimate means for the victim(s) to avoid that stench. A person with good desires would have reason to support laws that prohibited a person from subjecting his neighbor to extremely offensive sights, smells, and sounds.
So, yes, it is immoral to offend another, and the offense may be so great that it is legitimate to employ the criminal law to address it.
B. Offense by Words: Is It Wrong?
However, does this apply to offense which is caused by words?
Why might it be the case that words are treated differently?
First, though some words may be condemned because they are harsh to listen to, for the most part what offends us when words are used is the meaning of the words. We disagree strongly with the idea that the person who offends us is communicating.
If we bring the criminal law into play in these types of cases, then we are at risk of censorship. What we are saying, when we use the criminal law to prohibit verbal offense, is, “We prohibit these ideas that we disagree with from being expressed.” This is censorship, and censorship has its own risks.
Second, offense is strongly associated with desire. I have been arguing throughout these chapters that morality is ultimately concerned with what individuals ought and ought not to desire (and with the strength of those desires). In the realm of offense, this translates into a concern over what individuals ought and ought not to find offensive. Just as a person might desire something that ought not to be desired, a person might be offended by something in which he ought not to find offense.
The bigot who is offended at being called a bigot is having a desire of his thwarted. There is some bad in this. However, it would be a mistake to be so devoted to removing offense, that we prohibit the condemnation of bigotry.
John Stuart Mill, in his book On Liberty, answered the question of offense by words clearly enough, I think. He argued that the problem with combating offensive speech through criminal law is that it tries to suppress the offensive idea by force of arms, rather than force of reason. Ultimately, force of reason is the better tool — people learn not only that the ideas communicated in the offensive speech are bad, but why they are bad and why a person with good desires should find them offensive.
Indeed, Mill went so far as to argue that, if people do not exist to challenge our ideas and help us to constantly remember why we adopt them, that it would be in our interest to hire and promote devil’s advocates. Their service to their community would be to promote the most offensive ideas to the best of their ability. We, in turn, are only permitted to answer them with counterarguments and never with the force of legal sanction. The option of making their speech criminal is prohibited. In this way, the ideals that we hold will always be fresh and understandable in our own minds. Without a vigorous defense of these principles, they risk becoming weak and their justifications forgotten.
So, while a person with good desires may find certain ideas offensive, the person with good desires would also have an aversion to combating those offensive ideas through legal injunctions and criminal sanctions. He would prefer to counter those ideas by explaining why a good person would find them offensive, and why a person who does not find them offensive cannot be counted as a good person.
C. Nonverbal Communication
Communication is not limited to spoken and written words. Hand gestures can be used to communicate ideas, as is done with sign language. Flashing lights, taps on a wall, the nod of a head, a question, even silence (in a particular context) can be used to communicate. Consequently, it is reasonable to ask whether the discussion on how to treat verbal communication can also be applied to nonverbal communication.
While attending the University of Maryland at College Park, I wrote a guest editorial that was published in the school paper, the Exponent, on the subject of flag burning.
Applying the principles discussed here, I concluded that the person who burns a flag, so long as it is his flag and he burns it in a way that minimizes the risk of harm to others, does so for the purpose of communicating an idea. Whenever one communicates an idea, one looks for the best, most efficient way to get that idea across to others. The most effective way may not be with words, whether written or spoken. A picture is worth a thousand words, or so it is said. So pictures should not be censored. An action can be worth a thousand pictures. An action is not substantively different from a moving picture.
There is no difference between censoring a communicative act, and censoring communicative words. Speaking and writing are themselves are nothing more than specific types of communicative actions.
Those who wish to censor a communicative act are really saying nothing less than, “I wish to silence you. Though I will not silence you completely I will deprive you of the most effective way of communicating your ideas. You will still be permitted to state your case, but we will not allow you to communicate it effectively.”
It is particularly obnoxious when these people further assert, “Because we are leaving you with ineffective ways of making your case, you are not truly being censored.”
In fact, the drive to prohibit these forms of communication are largely grounded on an admission of the fact that they are effective at communicating those ideas. If the form of communication was not effective, why would the censor care that they be prohibited?
The censor of communicative acts may not be interested in completely silencing the opposing idea, but he does demonstrate a desire to handicap those who would seek to communicate that idea. The principles behind the censorship of a communicative act are like those of the censor who says, “You may speak those words, but your speech can be no more than 5 decibels; or, I will not prevent you from writing your ideas down and presenting them to others, but you may use nothing larger than a 1 point font.”
It is particularly obnoxious when the censor follows this up with the ridiculous statement, “Because I still allow you to speak and write, I am not limiting your free speech.”
V. An Overview of Morality and Law
This section is much too short to discuss the issues that I raised in anything but the most superficial detail. Much more can be, and has been, written on each of these topics. Yet, I hope that the brief presentation given here can demonstrate a few of the more important ideas.
(1) The concept of mens rea shows how the legal concept of a “guilty mind” can be accounted for under the same description as “a mind with bad desires.” In particular, the excuses recognized in law are exactly those things that one would use to argue for a break between some action or outcome that a person with good desires would not have performed, and the desires of the agent.
(2) A just law is a law that a person with good desires would support. Those desires include not only a desire for good consequences, but desires that tend to produce good consequences such as a desire for truth and an aversion to harming the innocent.
(3) There is no general obligation to obey the law. That is to say, a desire to obey (or an aversion to disobeying) the law is good only if the law is good. While there is no obligation to obey the law unless it is a just law, under certain circumstances there may be an obligation to presume that the law is just.
(4) The idea that the government should only legislate morality implies that the government should never legislate or empower immorality through law.
(5) All criminal law, at least, should be concerned with nothing but the legislation of morality. However, this does not imply that all morality should be legislated. Law is a large and imprecise instrument that is ill suited to some of the concerns of morality.
(6) Offense can be a sufficiently good reason for legislation, but those who are offended by words should not be allowed to silence those who offend them by law. Offensive ideas should, instead, be countered by explaining their error.