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merits criminal prohibition. Harm can have an entire society as its victim. It is based on this that the legal moralists contend that the state is warranted morally to use instruments of law to protect itself from such harm that can bring about disintegration or erosion of societal values.
It is in the context of these considerations that Feinberg characterizes Lord Devlin as an impure legal moralist. He explains that why it is true that Devlin call for thecriminal prohibitions against such activities as oral and anal copulation (sodomy) his reason for this, however, does not seem to be that he regards these activities as inherently immoral if by ―inherently immoral‖ we mean ―immoral on the basis of properties of the act itself rather than on the basis of how the act is perceived or judged by others.‖ It apparent therefore according to Feinberg thatDevlin might be prepared to concede that it may be difficult to find plausible secular (and thus constitutionally acceptable) grounds for regarding occasional homosexual sodomy between consenting adults as in itself immoral. For instance, occasional homosexual sodomy, unlike say occasional torture, does not seem - at least in any obvious way - to extinguish the possibility of living a virtuous life of human flourishing - unless, of course, one draws one‘s theory of virtue and flourishing from a religious source.
It follows for Feinberg in this regard that Devlin never seeks to show that consensual sodomy is inherently immoral. The bone of contention as Feinberg sees it is Devlin‘s conviction that society is bound together, not by moral truth, but simply by shared moral beliefs - however irrational and unenlightened those beliefs may be. Devlin is thus able to construct the following argument:
the criminal law is legitimately concerned with the preservation of society, violations of a society‘s shared morality tend (like treason) to undermine society even in cases where these violations have no direct personal victims, and thus the criminal law may legitimately prohibit such violations in those cases
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where the majority judges this to be a prudent course of action.41
Viewed in this way, Devlin is not challenging liberalism but is rather exploiting a tension within liberalism itself - the tension between the value of individual liberty, on the one hand, and the value of democratic rule toward utilitarian ends on the other.
Based on these clarifications made by Feinberg, it could be argued and rightly so that Devlin is not just a legal moralist but also a utilitarian, democratic cynic with some controversial empirical views. Utilitarian because he regards social harmfulness, in some very extended sense, as the only factor relevant in justifying a criminal prohibition. Democratic because he believes that the majority has a right to have its preferences enacted into law absent some compelling reason why they should not be. Cynical because he believes the social importance of a moral belief is not a function of its truth or reasonableness but is solely a function of its pervasiveness and the degree to emotional intensity with which it is held.
Hart and Feinberg‘s case against Devlin in this regard is that his position is empirically controversial for this reason: he holds extremely confident beliefs about the extent and depth of the moral repugnance to sodomy and about the harmful impacts of challenges to those feelings of repugnance and he holds these beliefs, on the basis of little or no empirical evidence. Devlin‘s belief that private acts of consensual sodomy tend, like treason, to undermine society seems to Hart to be evidentially on a par with the Emperor Justinian‘s belief that homosexuality causes earthquakes.42
If the characterization we have given to Feinberg‘s interpretation of Devlin‘s view here is correct, then the differences between Devlin and liberals such as John Stuart Mill seem not as interesting as one might have initially thought. Most of the differences are not on deep issues of ultimate principle, but rather on issues of empirical evidence of social harm. Feinberg‘s case against Devlin on these issues seems to be that Devlin rely more on hunches than on solid evidence, a tendency exhibited by many utilitarians. Mill‘s own
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case for freedom, after all, is based largely on empirical hunches about the long-range social benefits of freedom, and as we have seen in the previous section there is no overwhelming evidence in support of his extremely strong views on the matter.
In spite of the shortcomings of Devlin‘s own positive views highlighted by Feinberg, two important issues of principle that are worthy of serious thought and reflection can be generated from his negative discussion - his counter-attack against Hart and other liberals who have attached him. These issues arise as consistency challenges to moral and political liberalism - challenges that a rejection of legal moralism, demanded by liberals especially in the area of sexual freedom, is inconsistent with two other doctrines that many (if not all) liberals hold dear: first, the idea that criminal punishment should be based, at least in part, on the retributive notion of desert or blameworthiness and, second, the idea that democracy constrained by a set of fundamental rights is the preferred form of government. It has often been claimed, by followers of Marx and other philosophical radicals that the ideology of liberalism is filled with internal contradictions and will eventually explode as a result of the tensions generated by such conflict. Some of Devlin‘s challenges can also be read in this spirit.The next chapter will begin the process of unpacking Feinberg‘s liberal doctrine in the light of these challenges.
4.3.1.2.1.Pure Legal Moralism
Feinberg reserves the term ―Pure Legal Moralism‖ for those views that argue for using legal sanctions against immoral behavior solely because such behavior is immoral. To explain this concept, Feinberg references James Fitzjames Stephen‘s challenge to Mill in his essay ―Liberty, Equality, Fraternity‖ published in 1873. For Stephen, according to Feinberg, some immoral acts are so outrageous, that they must be prevented at any cost.
On this ground, Feinberg categorizes Stephen as a ―pure legal moralist in the strict sense.‖43
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Feinberg‘s categorization of Stephen as a pure legal moralist is better explained within the context of thedistinction the former makes between Stephen and Devlin. Feinberg claim that unlike Devlin, Stephen does not reject immoral acts or call for the criminalization of immoral acts on the ground that they cause some kind of indirect harm to society; he does not invoke the harm principle to justify moralism. Stephen‘s call according to Feinberg is strictly, because the evil Stephen cites is inherently immoral. It is therefore Feinberg‘s contention that Stephen assertion that the prevention of immorality is a proper end in itself and justifies state action. 44
One interesting thing about Feinberg‘s analysis of Stephen‘s theory is that he doesn‘t present Stephen as claiming that there are acts whose immorality is self-evident or obvious to every member of a particular society. Rather according to Feinberg‘s reading, Stephen argues that morality or immorality should be determined by reference to the majority opinion of society. In other words, if there is a unanimous condemnation of a conduct bythemajority, even if it is private and does not harm or offend others, the state can legitimately criminalize it. Feinberg on this ground charges Stephen‘s pure legal moralism as autocratic and anti-liberal because it considers:
Morality as the moral code observed by the ruling section of present society, ignoring the possibility of temporal or geographical differences. His theory has some autocratic implications: if the conduct of a minority group is labeled as immoral by the majority, even if it is private and does not harm or offend others, the state can legitimately criminalize it.45
Feinberg‘s rejection of Stephen‘s pure legal moralism is challenged by some special counter instance, particularly the case of consensual cannibalism. Some of these cases will be explored in the next chapter.
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