Wednesday, May 14, 2014

Enforcing Morality through Criminal Law (Part Three)

(Part One; Part Two)

This is the third and final entry in my series on Steven Wall’s article “Enforcing Morality”. In the article, Wall tries to make the case for an expansive form of legal moralism. Legal moralism is the belief that only immoral conduct can be criminalised. Minimalistic forms of moralism say that immoral conduct must also be harmful to others before it deserves criminalisation. Expansive forms of moralism say that immoral conduct that is not harmful to others can also be criminalised.

Wall’s particular brand of moralism is concerned with conduct that damages an individual’s moral character, but does not impact negatively on other people. He holds that there should be a presumption in favour of the criminalisaiton of such conduct, though he accepts that this presumption can be outweighed by other factors.

In part two, I outlined Wall’s main argument in defence of this view. In brief, the argument claims that if we care about improving individual well-being through the law, we should also care about individual moral character. I had some criticisms of that argument in the previous post. Today, I’ll outline a different set of criticisms — these ones coming from the work of Ronald Dworkin — along with Wall’s response to those criticisms.

1. Dworkin’s Critique: The Need for Moral Authenticity
To understand Dworkin’s criticisms, we first need to understand what Wall’s proposal would entail. This, unfortunately, is not something that Wall himself is clear about in the article. The idea seems to be roughly as follows: first, we accept that certain kinds of immoral conduct damage individual moral character; second, we legally prohibit or restrict people from engaging in that kind of conduct; and we thereby try to disincentivise or remove certain options from set available to the individual moral agent.

By disincentivising or removing those options, you might think that we impinge upon the agent’s moral autonomy. After all, moral autonomy is the right to choose from a set of options and so any reduction in the number of options available to an agent would seem to necessarily impact upon their autonomy. In another article, Wall addresses this criticism and argues that due regard for moral autonomy does not rule out all such state interventions. As it happens, Dworkin seems to agree with Wall on this score.

But Dworkin thinks there is another problem lurking here. Although restricting options in this manner may not impact upon autonomy, it may impact upon another important value: moral authenticity. By this, Dworkin means something like the value of independently shaping one’s own moral character, of determining the values and principles by which one lives. Dworkin says that this value is damaged whenever “a person is made to accept someone’s judgment in place of his own about the values or goals his life should display” (taken from Wall 2013).

Dworkin adds that the value of authenticity is integral to a sense of self-respect. In other words, he claims that a person cannot truly have self-respect if they lack the ability to shape their own moral characters. This claim has an interesting effect on Wall’s argument for expansive legal moralism. As you’ll recall from the last day, the three premises of Wall’s argument are as follows:

  • (1) If it is a proper function of the criminal law to protect and promote the well-being of those who are subject to it, then it is a proper function of the law to assist those who are subject to it to lead well-lived lives.

  • (2) To live well a person must have and merit a sense of self-respect.

  • (3) To have and merit a sense of self-respect, a person must be committed to pursuing a sound conception of the good and must care about his/her character.

These premises set-up a chain: if A then B; B requires C; C requires D; therefore, if A then D. The effect of Dworkin’s argument is to break that chain at the second link, i.e. at premise (2). Dworkin is claiming that the concept of self-respect incorporates the concept of moral authenticity, and that the concept of moral authenticity excludes the kind of legal moralism Wall defends.

Is Dworkin’s argument any good?

2. Challenging Dworkin’s Argument
There are a couple of ways you could challenge Dworkin’s argument. One, slightly boring, way of doing it would be to question the link between authenticity and self-respect: maybe one can have self-respect even if all of one’s moral decisions are outsourced to another authority? Maybe. But let’s leave possibility to the side for now because even if there is no essential link between the two concepts, it nevertheless seems like moral authenticity is something we might care about and which might be undermined by the legal engineering advocated by Wall.

Is there another way of challenging Dworkin’s argument? One that accepts the value of character, self respect and authenticity? Wall says there is. The problem for Dworkin is that authenticity seems to require independence from the ethical influence of others. But, of course, no one escapes the ethical influence of others. Even if the government didn’t explicitly tell me that I shouldn’t steal or murder my neighbours, we can be pretty sure that other people would and that they would pressurise me into refraining from those actions. Society is replete with non-legal, informal networks of moral influence.

Dworkin accepts this. He simply thinks that there are different kinds of ethical influence. For him, there is something worse about top-down, coercive influence from the government, than bottom-up (or horizontal) influence from one’s peers. This response is itself problematic. If we are not anarchists — i.e. if we accept that the government has to sometimes shape our moral environment — then the distinction between what is an example of top-down interference and what is not, will be difficult to draw.

Wall uses the concept of “countenancing” an ethical environment to make this point. He argues that a government can be said to countenance a certain kind of ethical environment (one that influences choices in particular ways) whenever that environment is a foreseeable consequence of the government’s action or inaction.

Take the example of prostitution (this is one used by Wall). Suppose the government has to decide what legal policy to adopt in relation to prostitution. Suppose, further, that the government knows three things: (i) certain legal measures, if taken, would actually reduce the amount of prostitution; (ii) failing to take these measures will lead to attitudes toward sex that are detrimental to moral character. (If you disagree with this substantive moral claim, you can simply replace this example with another of similar form). Then assume that the government decides not to adopt the legal measures that would reduce prostitution. Has the government influenced your moral decision-making?

Wall argues that in such a case the government can be said to have countenanced the existence of an ethical environment in which attitudes toward sex were detrimental to moral character. In other words, the existence of an ethical environment that promoted or facilitated detrimental attitudes toward sex wasn’t simply a default, natural, bottom-up, byproduct of their failure to legislate. It was something they effectively created through inaction.

Just to be clear, Wall is not claiming that there are no moral differences between governments that do something through inaction and ones that countenance an outcome by inaction. For example, a government that chose to deliberately impose poverty on its citizens is worse (for him) than one that foresees poverty as a consequence of inaction. But notwithstanding that possibility, the notion that there is a stark moral distinction between decisions to legislate or to not legislate is insupportable.

I’m pretty sure all this is correct: ethical environments that impact upon moral character can be created through action and inaction. But how does this observation affect the original point about moral authenticity and the need for ethical independence? I guess Wall’s argument is that the government is nearly always influencing our moral behaviour, either through its actions or inactions, and hence we are never truly ethically independent of the government — the only exception, maybe, being when an outcome or choice is an unforeseeable effect of governmental actions or inactions. But that doesn’t seem to undermine Dworkin’s point about restricting the number of options available to an individual moral agent. If the government criminalises prostitution, then it severely limits access to a particular option — however good or bad it may be. Surely that limitation has a negative effect on moral authenticity? It reduces the agents’ opportunity for developing moral character.

The problem is that this response seems to assume that people need their lives to be ethically challenging, i.e. for them to be consistently presented with genuine moral choices (i.e. not coerced or limited choices). But this can’t be right: we can’t really want to preserve all ethical challenges. After all, we have no problem with restricting some moral choices through the law (e.g. the choice of whether or not to kill someone). The question is: how many such moral choices can we restrict before the ethical challenge is completely undermined? Wall argues, in response to this, that it is unlikely that a government would ever limit that many choices, and, what is more, the government doesn’t have to completely prohibit or outlaw options in order to promote good moral character. Many regulatory crimes, for example, preserve moral choices; they just render them more difficult to make (e.g. through licencing and insurance requirements).

3. Conclusion
That brings us to the end of this series. I hope you enjoyed this brief romp through some of the ideas and debates animating the current literature on criminal law and the principles of criminalisation. Among legal theorists, Wall is certainly one of the people who is more inclined to expansive moralism. But I have noted many people recently (e.g. Duff, Greene) who seem to embrace principles of criminalisation that go beyond the traditional harm principle. It is an interesting trend.

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