OFFENSE AND THE LIBERAL CONCEPTION OF THE LAW

In: Philosophy & public affairs, Band 13, Heft 1, S. 3-24

Abstract

A CENTRAL TENET OF THE LIBERAL CONCEPTION OF THE LAW IS THAT THE MERE IMMORALITY OF ANY ACTIVITY CANNOT, EVEN PRIMA FACIE, JUSTIFY ITS LEGAL PROHIBITION. IT IS OFTEN THOUGHT TO BE CONSISTENT WITH THIS TO HOLD THAT SOME ACTIVITIES MAY BE LEGALLY PROHIBITED BECAUSE THEY ARE OFFENSIVE. IN PARTICULAR, ACTIVITIES WHICH ARE INDECENT OR OBSCENE MAY BE PROHIBITED ON THIS GROUND. THERE ARE (AT LEAST) TWO WAYS IN WHICH THIS CAN BE HELD. THE REJECTION OF LEGAL MORALISM IS OFTEN PRESENTED AS DERIVED FROM WHAT MAY BE CALLED THE HARM CONDITION: NO ACTIVITY MAY BE PROHIBITED UNLESS IT CAUSES HARM. CONSEQUENTLY, IF THERE ARE ANY HARMLESS IMMORALITIES, THE MERE IMMORALITY OF THESE ACTIVITIES MAY NOT COUNT AS A GROUND FOR PROHIBITING THEM. BUT IF THEY ARE ALSO PUBLIC AND OFFENSIVE THEN THEIR OFFENSIVENESS MAY COUNT." A SECOND WAY TO HOLD BOTH VIEWS IS TO HOLD THAT THE HARM CONDITION IS TOO RESTRICTIVE, AND NEEDS TO BE SUPPLEMENTED AT LEAST BY THE PRINCIPLE THAT THE OFFENSIVENESS OF AN ACTIVITY MAY BE A LEGITIMATE GROUND ON WHICH TO PROHIBIT IT; BUT THAT THIS IS STILL CONSISTENT WITH A REJECTION OF LEGAL MORALISM.3 THIS PAPER DEALS WITH THESE POSITIONS IN TURN.