Sunday, May 11, 2014

Enforcing Morality through Criminal Law (Part Two)

(Part One)

This is the second post in my series on Steven Wall’s article “Enforcing Morality”. The article makes the case for an expansive form of legal moralism. Legal moralism is the view that the criminal law ought only to prohibit conduct that is morally wrongful. In other words, that wrongfulness is a necessary precondition for criminalisation. This much is relatively uncontroversial. The controversy is over which moral norms should fall within the scope of criminalisation.

As we saw in part one, minimalistic forms of legal moralism — such as those popular among liberal and libertarian thinkers — hold that the criminal law should only concern itself with immoral conduct that is harmful to others. The more expansive forms of moralism try to incorporate immoral conduct that is harmful to the self. Wall’s particular expansive view is concerned with including so-called “moral” harms to self. By “moral harms” Wall means to include actions which damage or undermine an individual’s moral character, i.e. his or disposition to act well.

In this post, I am going to cover Wall’s main argument in favour of this expansive form of legal moralism.

1. Wall’s Argument in Brief
To start off, we can look at the general structure of Wall’s argument. Unfortunately, Wall’s does not deign to provide us with a formal version in his article. Nevertheless, he does explicitly tell us that his argument rests on three claims. Taking those three claims on board, and reading between the lines somewhat, allows us to come up with the following reconstruction of his central argument:

  • (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.
  • (4) Therefore, it is a proper function of the law to promote good moral character among its subjects.

Formally, this argument follows a very simple pattern. The premises work something like this: if A then B; B requires C; C requires D; therefore, if A then D. The premises speak to the “law” rather than to the “criminal law”, this is a linguistic quirk I’ve carried over from Wall’s article. I take it that he means to refer to the criminal law, given the content and context of his article. Nevertheless, I find the phrasing unfortunate since there are many types of law, and although one may not embrace the use of criminal law to promote good character, one could certainly imagine using other types of law to promote good character.

The most significant objection to this argument will be considered in part three of this series. This objection comes from the work of Ronald Dworkin. In the interim we’ll work through Wall’s initial defence of the three premises.

2. Defending the First Premise
The first premise is expressed in a conditional form. It essentially says to us: “If you accept that A is a proper function of the law, then you should also accept that B is a proper function of the law.” But what happens if you don’t accept A? Then the argument as whole will hold no sway for you. As it happens, this is not a purely formal concern. There are several brands of legal theory that would reject the notion that the law should concern itself with the well-being of its subjects. Staunch rights-based libertarians, for example, might hold that the law should only concern itself with protecting individual rights, even if those rights lead to reductions in individual well-being.

Wall acknowledges this shortcoming and the resulting dialectical weakness of his argument. But he is eager that we do not overstate the problem. He provides evidence elsewhere in his article for thinking that many liberal legal theorists think that the criminal law does have some role to play in promoting individual well-being. For these theorists, the argument will at least be worth considering.

So how, then, about the second half of the conditional? Is it true that a concern for well-being encompasses a concern for the well-lived lives of legal subjects? Wall says a lot about this that I find unnecessarily confusing. I think his basic point is pretty straightforward. It is that we must have a more holistic sense of what “well-being” is. It is not just, say, conscious subjective pleasure, or the satisfaction of desires (as utilitarians may have us believe). It is something more. It encompasses the notion of the well-lived life, i.e. the life spent in the pursuit and fulfillment of rational aims.

I wouldn’t disagree with this at all. I think the concept of the well-lived life — or, rather, the life worth living — should be central to our public policy. Of course, this does not mean that I think the law should necessarily get involved. The big problem, as Wall again acknowledges, is that legal interventions may often do more harm than good. However, this possibility does not disrupt his argument since he is interested merely in defending a presumption in favour of such legal intervention; not a conclusive presumption in favour of such legal intervention.

3. Defending the Second Premise
Granting premise (1), if only for the sake of argument, what can be said in favour of premise (2)? It claims that a necessary precondition for living the well-lived life is a sense of self-respect. According to Wall, “this claim is often asserted and widely believed”. So he doesn’t think it should be in any way controversial.

That’s a little unsatisfying, of course. We would like to be able to say more in favour of premise (2). And fortunately there are some things to be said. Appealing to work done by Rawls, Wall argues that the sense of self-respect is what makes one inclined to pursue and act upon rational aims in the first place. Without the belief that one’s actions are of value, or that one’s life is worthwhile, one will have no motivation to act. As a result, the well-lived life will be forever out of reach. Rawls felt that social institutions could have a profound impact on attitudes of self-respect.

I guess that’s okay — although one may question the armchair psychologising. There is, however, a issue that lurks here and that may disrupt the argument itself. As you can see from premise (2), Wall thinks that not only must the individual have a sense of self-worth, but they must also “merit” that sense of self-worth. There’s a reason why this “merit”-qualifier is included: without it the case for paternalistic legal interventions would be lessened. After all, the idea here is that someone may be trying to live the good life, but failing to do the right things. The law could then be used to “nudge” them in the right direction. But if the good life does not require an objectively merited sense of self-respect — if all it requires is a sense of self-belief and commitment — the opportunities for legal intervention will be much more limited.

So is there anything to be said in favour of the merit requirement? Yes, there is. Indeed, I have considered the issue previously on the blog. It has to do with subjective versus objective theories of meaning in life. Purely subjectivist theories can lead to counterintuitive results, e.g. the person who derives satisfaction from counting all the blades of grass in the world could be said to live a good life on a purely subjectivist account. Purely objectivist theories suffer from a related problem: they might not be very satisfying from the perspective of someone who lives them (though this isn’t as counterintuitive a result). Consequently, many favour a “mixed” account of the good life. Susan Wolf’s “fitting fulfillment” theory is a good example of this trend. She argues that to live the good life one must pursue goals of objective worth, and be fulfilled by doing so.

I think the link between self-respect and the well-lived life in Wall’s second premise is similar to the relationship between fittingness and fulfillment in Wolf’s theory.

4. Defending the Third Premise
That brings us to the final premise of Wall’s argument. This is one claims that in order to have the requisite sense of self-respect, there must be some concern for moral character. What can be said in favour of this premise?

Not much, really. The case for premise (3) is quite easy to make out. A person’s moral character is understood as that person’s set of traits and dispositions. The person with a good moral character will be responsive to moral reasons, i.e. will be able to identify and act upon that which it is good to act upon. Given this definition, and given our new-found understanding of merited self-respect, it pretty much stands to reason that self-respect requires some concern for moral character. After all, in order to have a merited sense of self-respect, the person will need to be attuned to that which is good or bad, i.e. to identify the projects and aims that are of objective worth and pursue them with vigour.

So that’s it. That’s Wall’s defence of the leap from well-being to the well-lived life, and from their to a concern for self-respect and good moral character. I can’t help but being a little underwhelmed by all this. I’m perfectly willing to accept that well-being encompasses the kind of theory of the good life that Wall imagines, but I don’t quite see how this gets us to the brand of legal moralism he wishes to defend. When it comes to it, he has the following to say:

Accordingly, if people are to live well, they must not only have a good character but also care that they have such a character. And if they have this concern, then they will not be indifferent to the character of the ethical environment in which they and others live. They will want that ethical environment to be supportive of, not inimical to, the development and maintenance of good character. 
(Wall, 2013)

True enough, I guess. But why think that the criminal law is the tool to use when building such an ethical environment? Aren’t there other, arguably more preferable, tools out there? Part of the problem here may be the essentially modesty of Wall’s argumentative goal. As noted in part one, he merely wishes to defend the view that the criminal law can get involved in this kind of ethical environmental engineering; he doesn’t want to say that it should always and everywhere get involved in this process. There could be reasons that count against its use. But in that case I worry that the modesty of his argument renders it uninteresting. Particularly if it turns out that there are always reasons that count against using the criminal law to promote good moral character.

Despite this criticism, I must admit that Wall does go some way toward making his argument more interesting. He does this by responding to Ronald Dworkin’s criticism of this expansive brand of legal moralism. We’ll look at that response in the final part.

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