The Rules of Engagement

FROM THE ARCHIVES (Daily Nebraskan columns)

The Rules of Engagement

Jeremy Patrick (jhaeman@hotmail.com)

The Daily Nebraskan

January 29, 2001

"The limitation of liberty is justified only when it is necessary for liberty itself, to prevent an invasion of freedom that would be still worse."
--John Rawls, A Theory of Justice

Many of the most controversial issues of our day - such as abortion, drug use, gambling, prostitution, sodomy and assisted suicide - are complex and multi-faceted. The debates rage on several levels: religious and ethical concerns, historical and philosophical underpinnings and empirical effects on society. At their core, however, each of these issues has one thing in common that places them in the public eye: their controversial relation to the criminal law.
The debate is not so much about whether these things should be encouraged or discouraged, but whether the machinery of the criminal justice system should be used to stop them. The problem, of course, is that the people who decide whether these practices will be legal or illegal--the public and its representatives--usually have no principled method of making such decisions.
Instead, decisions are based on "gut instinct" or religious doctrine. "What I like" becomes "What should be legal," and "What I don't like," becomes "What should be illegal." Because of this failure to see the big picture, our criminal law is a hodgepodge of incoherent and irrational laws, with no consistent justification.
At one time, New York set a maximum penalty of 10 years for first degree assault and a maximum of 20 years for sodomy; Pennsylvania set seven years for assault with intent to kill and a 10 year maximum for pandering, and California had a two year maximum for "corporal injury to wife or child," but 15 years for "perversion" (Feinberg, 1985). In his four-volume series "The Moral Limits of the Criminal Law," philosopher Joel Feinberg discussed the most prominent justifications for the criminal law. He argued that a desire to prevent people from harming themselves ("Legal Paternalism") or a belief that certain conduct is inherently immoral ("Legal Moralism") are not valid justifications to enact a criminal law. Instead, Feinberg believed that only two justifications for the criminal law were valid: the prevention of harm to others (the "Harm Principle") and the prevention of serious offense to others (the "Offense Principle").
Feinberg's support for laws criminalizing conduct that merely offends others has come under serious attack because of the danger such laws present to civil liberties. His advocacy of the Harm Principle, on the other hand, has a distinguished history.
Thomas Jefferson summarized the principle in his pithy remark that "the legitimate powers of government extend to such acts only as are injurious to others," but the idea was first articulated and explored by John Stuart Mill in his classic, "On Liberty." Mill believed passionately that freedom of expression had real value only when linked to freedom of conduct. Therefore, he argued that laws based on paternalistic desires (such as our modern-day drug laws) or the religious fervor of some segments of society (such as sodomy laws) are unjust and ultimately cause more harm than they prevent.
As Mill put it: "The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost."
Mill may have underestimated the problems inherent in the Harm Principle. Even if society were to adopt it, there would still be debates over how much harm is too much or whether the harm is too indirect. But at the very least, the Harm Principle provides a rational area of discourse. Our current reasons for enacting many criminal laws, "God says it's wrong" or "I just don't like it," do not even accomplish that much.
Of course, no single book or essay (and certainly no magazine column) provides the answer in a neat little package. The point is that we must read, think and even write about these issues because they have real-world significance.
Our criminal justice system is powerful and sometimes deadly; we have a corresponding responsibility to think carefully before we determine its targets.