Topics Law

Question Can it ever be legitimate to legally prohibit an action solely on the basis that it causes offense in a part of the population and nothing else? It is clear to me that some of these actions will be regarded as morally objectionable by almost all ethical theories. But can taboo breaking alone be sufficient to forbid something by law, or should such laws always require other justifications as well?

Accepted:
May 30, 2006

Comments

John Stuart Mill argued that offense to others is not a permissible ground for a legal prohibition of conduct -- "that the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient reason" (On Liberty, chapter 1). But then Mill also stretched the notion of harm in various ways so as to reaffirm prevailing prejudices about what conduct it is permissible to proscribe. To think about your question carefully, one needs to start with a sharp definition of offense which supports a clear distinction between offense and harm. (Joel Feinberg's work has a lot to offer on this score.) This is a difficult task, and it is quite likely that our linguistic intuitions about what is harm and what is mere offense are shaped by our moral intuitions about what may and may not rightfully be proscribed by the criminal law.

Here are a few examples of conduct most people in developed Western countries find deeply offensive and want to see criminalized: polygamy, pederasty, incest, necrophilia, sex with animals, eating of dead human beings, human sacrifices, physician-assisted suicide (all with the consent of all involved). In which of these cases can the majority adduce a justification for prohibition other than offense? In which of these case, in particular, can the majority plausibly claim to be harmed by the offensive conduct or claim that willing participants in this conduct are being harmed unduly (in a way not justifiable by their consent)? Such claims have been made about every one of the listed cases, and the assessment of these claims then depends on one's definition of harm as distinct from mere offense.