The distinction between private immorality and public indecency plays a significant and perhaps a crucial role in H. L. A. Hart's argument in Law, Liberty, and Morality. This distinction, and the uses to which he puts it, have, however, been largely overshadowed in the ‘debate’ between Professor Hart and Lord Devlin which has centred around such ‘great’ questions as whether a shared morality is necessary for a society. I shall argue that Hart's position, in so far as it is based (...) on that distinction, is quite untenable, and that even if it were to be a possible position, it would none the less be incompatible with the sort of ‘libertarian’ view of society expressed by John Stuart Mill, whose ‘spirit’, at least, Hart believes himself to be defending. (shrink)

John Gray, much influenced by Isaiah Berlin and building on work by the late John Rees and the late Fred Berger, has recently stated three ‘fatal’ objections which virtually all analysts seem to find persuasive against John Stuart Mill's classic doctrine of liberty. First, Gray thinks it ‘an obvious objection to Mill's project that conceptions of harm vary with competing moral outlooks, so that no Principle of Liberty whose application turns on judgements about harm can expect to resolve disputes between (...) exponents of opposed moral perspectives’. Even if we overlook Mill's strange silence in the matter and supply him with a reasonable definition of harm, it remains clear that the liberty principle ‘is not, and cannot be, the very simple principle Mill sought’. For ‘Mill's principle is in its very nature radically incomplete. It tells us what we may not do, but not what we ought to do.’ To know when liberty should in fact be restrained, ‘we must look to other principles—chiefly the Principle of Utility itself’. But if general utility alone can ‘tell us how much liberty may be given up for how much harm-prevention’, then ‘there can be no question of adherence to [an] exceptionless principle such as Mill's Principle of Liberty’. Thus, even if we believe that Mill's version of utilitarianism is coherent, his judgements about the regulation of conduct must depend on a highly complex and controversial moral doctrine. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding "profound (...) offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)