Evil, when we are made to face it, rarely leaves us indifferent; numb and struck dumb, perhaps, but not indifferent. Evil is not merely unwelcome—when the bee stings, when the dog bites, when we're feeling sad—it is not merely regrettable. Evil always demands attention, action, response, rejection. Some evils, of course, can be coped with only in thought, although in its “pure” form, evil defies understanding; it is unintelligible.1
JOEL FEINBERG, PROBLEMS AT THE ROOTS OF LAW (2003), at 142–144.
However, when evil hits home, and even when we view it with fear or outrage from a distance, it can blur moral distinctions, obliterate nuance, and blind us to what is our proper business.2
In his essay “Evil” (in supra note 1) Feinberg explores in detail the blurring of moral categories caused by our experience or observation of evil.
Like Mill, whom he follows, Feinberg articulates this view in great and greatly illuminating detail, but he spends much less time directly defending it. The project of this essay is to see how far Feinberg's own resources can take us towards a full and satisfying defense of his liberal position.
VARIETIES OF EVIL
“The spirit of liberalism,” Feinberg writes, lies in its “concern for humanity…limited only by its respect for autonomy.”3
JOEL FEINBERG, HARMLESS WRONGDOING (1988), at 328.
JOEL FEINBERG, RIGHTS, JUSTICE AND THE BOUNDS OF LIBERTY (1980), at 165–167. Feinberg acknowledged that there are rights-bearers other than human individuals (at 159–206): some animals, e.g., insofar as they have morally important interests, and certain communities or collectivities. But he believed that the moral claims these rights make on us tend to be weaker, or at least more limited in scope, than individual human rights, which are at the center of this conception.
FEINBERG, supra note 3, at 79.
Id. at 79, 154.
In Feinberg's view, grievance morality provides the only legitimate basis for the criminal law, but this is not because he thinks it defines the outer boundaries of morality. He thinks it is only one department of morality. Unlike some defenders of a liberal position on the enforcement of morals, Feinberg does not dismiss “free-floating evils” (evils that are not anchored to grievance evils) as nonevils, irrelevant from a moral point of view.7
Id. at 66.
Id. at 125.
Id. at 125.
Id. at 80.
Id. at 66–67.
Thus it is important to recognize that Feinberg's debate with his opponents over the criminal enforcement of morals is a substantive debate over how much or what parts of morality our political societies may legitimately enact and enforce. Any liberty-limiting principle, whether a conservative legal moralist principle or Mill's liberal harm principle, he argues, “is a principle enforcing some segment of some morality” because the criminal law is “an instrument for creating and reinforcing moral consensus.” The liberty-limiting principles he proposes are also “moralistic principle[s], aimed at determining the moral values that may properly be enforced by the morality-shaping apparatus of criminal law.”12
Id. at 13.
Id. at 13.
VARIETIES OF LEGAL MORALISM
We need to clarify this question a bit. Lord Devlin correctly distinguishes two critical questions: (1) “If a society has the right to pass judgment [on all matters of morals], has it also the right to use the weapon of law to enforce it?” (2) If it does have that right, when “ought it to use that weapon…[and] on what principles?”14
PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965), at 7–8.
J.M. MILL, ON LIBERTY (1969), ch. IV, para. 3.
Moral Entitlement Thesis (MET): Political communities are entitled to use the criminal law to enforce moral values or principles as they see them.
Nearly all parties to the debate assume a positive answer to Devlin's first question. The question for liberals, Feinberg writes, “is not whether society can pass judgment in all matters of morals, but rather which matters of morals are its proper business.”16
FEINBERG, supra note 3, at 135.
See, e.g., JOSEPH RAZ, THE MORALITY OF FREEDOM (1986); Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality, 40 WM & MARY L. REV. 927–946 (1999).
Global Legal Moralism: A political community is entitled in principle to enact and enforce any moral value or principle.
Since this is a principle of jurisdiction, not justification, it does not tell us anything yet about what forms of social behavior are justifiably punished by law or even what principles of political morality carry the greatest weight in answering such questions. They merely claim that political communities are entitled to consider and weigh any and all such principles. Clearly, Mill rejects this view; yet he accepts the moral entitlement thesis, albeit in a more restricted form. He, and Feinberg following him, embrace:
Restricted Legal Moralism: A political community is entitled to enact and enforce some but not all moral values or principles.
Mill, of course, seeks to restrict this entitlement to considerations of harm to others (and, possibly, offense of certain kinds). Since Mill, this has been the core of a distinctive liberal view on the legal enforcement of morals. We should note, however, that it is possible to hold both global legal moralism and something like Mill's restriction of the state's entitlement to enact and enforce moral standards to matters of harm to others. This is possible for those liberals who believe that morality is restricted to matters of behavior imposing or threatening harm to persons other than the agent. On a harm-centered view of morality, the harm-restricted entitlement to enforce morality is consistent with global legal moralism. On this view, the dispute between liberals and their conservative opponents is not over the scope of the entitlement of a political community to enact and enforce morality but, rather, a more fundamental dispute over the scope of morality itself. This is not Feinberg's liberalism. Feinberg's liberal embraces restricted legal moralism, and that thesis limits a political community's entitlement to some proper subset of genuine moral principles, values, or concerns.
Understood in this way, we can see that Feinberg endorses the restricted legal moralist thesis in a specific version, namely:
Grievance Legal Moralism: A political community is entitled to enact and enforce only grievance morality.
This is a form of the restricted thesis because, as I note above, he believes that grievance morality is just one department of morality. However, we must refine this one step further, for Feinberg holds that the contours of grievance morality are defined by the harm and offense principles as he meticulously articulated them. Thus he gives his liberalism the precise shape of grievance legal moralism as defined by the harm and offense principles.
Thus the pivotal point of disagreement between Feinberg's liberals and their opponents (liberal-minded or conservative) concerns the scope of legal moralism; it is not a disagreement about the feasibility, cost-effectiveness, or ultimate justification of criminalization of any particular form of social behavior. Feinberg, at least early on, accepted the view that moral arguments for and against use of the criminal law must pass through a kind of filter:18
JONATHAN SCHONSHECK, ON CRIMINALIZATION (1994), ch. 3.
This way of setting up the enforcement-of-morals debate forces us to ask two questions of the Feinberg's liberal that are rarely asked: (1) Why accept the moral entitlement thesis? Feinberg, like Mill before him, thinks it is intuitively obvious that MET is true, and since it is common ground between him and his conservative opponents, he does not feel the need to defend it directly. However, different views of the ground of this key thesis are likely to influence conclusions we draw regarding its scope, so there is reason to explore the case for MET. (2) Since there is logical space for a number of alternative versions of restricted legal moralism, why restrict it to grievance morality, and in particular to the harm and offense principles? Answers to both questions, I believe, rest on the view that the morality enforced is public morality.19
Gerald Postema, Public Faces—Private Places: Liberalism and the Enforcement of Morality, in MORALITY, WORLDVIEW, AND LAW (A.W. Musschenga, B. Voorzanger, & A. Soeteman eds., 1992).
However, before we can begin uncovering this argument, we must address two problems about Feinberg's view of the relation of the harm and offense principles to restricted legal moralism. First, although grievance morality is the source of Feinberg's liberalism, the liberal position on the enforcement of morals defined by the harm and offense principles is in fact narrower than grievance morality would yield. In the next section, I will argue that Feinberg's strongest position is one that takes grievance morality as its core, rather than the union of the harm and offense principles. Second, in the final volume of Moral Limits, Feinberg's commitment to a grievance morality version of restricted legal moralism wavers in the face to two powerful counterexamples —Kristol's gladiatorial contest and Parfit's malicious conception example.20
FEINBERG, supra note 3, at 27–33, 128–33, 325–31.
HARM, OFFENSE, AND GRIEVANCE MORALITY
The “liberal position” on the moral limits of the criminal law, writes Feinberg, holds that “the harm and offense principles, duly clarified and qualified, between them exhaust the class of good reasons for criminal prohibitions.”21
JOEL FEINBERG, HARM TO OTHERS (1984), at 26; FEINBERG, supra note 3, at xix.
Feinberg takes great care to construct a notion of harm suitable for use in his harm principle. On this view, a political community is always entitled (but not always thereby justified) to limit individual liberty to prevent wrongful harming. The notion of wrongful harming lies at the intersection of two distinct notions: (1) that of the harmed condition of a person, or harm simpliciter; and (2) wrongs done by one person to another that are neither excused nor justified. Harm simpliciter is a serious setback of an individual's legitimate (primarily welfare) interests and a person's interests are set back only when the individual is worse off, all of her interests being taken together and on balance. This harm provides a good reason for criminal-law intervention only when (1) it is the upshot of an action that wrongs the person who suffers the setback and (2) the wrongful action is inexcusable and morally indefensible. Antony Duff correctly points out that it is reasonable to drop clause 2 since it confuses eligibility of action-types for criminal prohibition with certain defenses that might be available to defendants (namely, certain excuses or positive justifications).22
R.A. Duff, Harms and Wrongs, 5 BUFF. CRIM. L. REV. 13–45 (2001), at 19–20.
Notice that this notion excludes several kinds of actions. None of the following are wrongful harms that figure in the harm principle: (1) actions that set back illegitimate interests; (2) actions that set back some of a person's legitimate interests but promote other interests of the person so that on balance the person is not harmed; (3) actions that adversely affect a person's interests on balance and are morally wrong but are not wrongs done to the individual suffering the setback, either because (a) they are impersonal wrongs or (b) the victim freely consented to the action; (4) wrongs done to a person that do not adversely affect the victim's interests and may even benefit her. We might regard actions of each of these kinds as objectionable to some degree (at least by the victim), but insofar as they are evils, they are not grievance evils in Feinberg's view, because they are not wrongs done to anyone, either because no harming was done or because the harming was not a wronging of the victim. They are, or are akin to, free-floating evils.
The first two groups of actions are not problematic for our purposes, but the last two are more troubling, especially 3(b) and 4. Exploitation and other cases of infringements of waived rights are examples of group 3(b); cases of beneficial trespass, burglaries that leave everything exactly in place, and possibly some cases of rape where the victim is under anesthesia and no physical injury is suffered are possible examples of group 4. In Feinberg's view, group 3(b) comprises cases of harms simpliciter that are not wrongs to the victim—wrongless harms, we might say—while group 4 comprises cases of harmless personal wrongs, that is, harmless infringements of rights.
I believe Feinberg should permit both groups of cases as reasonable targets for criminal prohibition. I return to consider below a special case falling into group 3(b).23
See the discussion below of the “trouble case” of Irving Kristol's gladiatorial contest.
The case for this friendly amendment rests on two considerations. First, they are appropriately analogous to matters of serious personal offense. With some plausibility, Feinberg insists that no plausible liberal position can entirely ignore significant cases of offense—either major nuisance or matters of profound offense. He carefully circumscribes his offense principle, of course, but he recognizes that even if no serious setback of legitimate interests is caused, certain kinds of offensive behavior are properly regarded not merely as free-floating evils but as wrongs done to the victims—offense evils directly suffered by specific persons. “Their victims are wronged even though they are not harmed.”24
JOEL FEINBERG, OFFENSE TO OTHERS (1985), at 25, 49.
Second, Feinberg also comes to see (albeit in passing) the relevance and force of arguments for prohibitions of paternalistic interferences by private parties.25
FEINBERG, supra note 21, at 78; Duff, supra note 22, at 28.
pace Duff, supra note 22, at 30.
Thus, even if we have problems accepting Feinberg's offense principle, we can acknowledge a strong reason from within his understanding of grievance morality to acknowledge harmless personal wrongdoing of category 4 above. In cases of beneficial trespass, for example, not only are the actions wrong but they are wrongs done to the victim, just as in cases of paternalistic interference. The action itself, not anything consequent upon it, is the wrong, and that wrong is sufficient reason to consider it eligible for criminal prohibition. In cases like these, “no harm, no foul” is out of place. The wrong done to the victim clearly funds a grievance on her part. Thus it is seriously misleading to treat cases of harmless violations of rights as akin to free-floating evils. On the contrary, the evils in view are securely anchored to the sakes of the victims, even if they are not hooked into their legitimate welfare interests as Feinberg understands them. If this is right, Feinberg might adopt legal moralism restricted to grievance morality in place of moralism restricted to harm and offense principles.
However, friendly amendments are rarely costless. The price of plausibility in this case is that one is left wondering just how central harms simpliciter—setbacks of interest on balance—are for grievance moralism. Feinberg's liberal is faced with a choice between Millian and Kantian ways of filling out grievance legal moralism. Following Mill, we could treat setbacks of legitimate interests as within the jurisdiction of political society even if the harming actions do no wrong. For example, if my pizza parlor loses in competition with your pizza palace, my legitimate interests arguably have been adversely affected, although no wrong has been done to me; yet we might think it not unreasonable to consider regulating competition or economic activity more generally as a legitimate form of government activity. This is not to say, of course, that government interference is always or even usually justified, but only that such matters fall within the government's jurisdiction. Hence, following Mill's suggestion, there is some reason to add nonwrongful harmings to the jurisdiction mix. Alternatively, drawing inspiration from Kant, one might argue that the central question in this context is whether society is ever entitled to use coercion and thereby to restrict the autonomy of individuals. One might argue that the state is entitled to use coercion only in support of a structure of rights that protect equal and reciprocal limits on liberty. On this view, grievance legal moralism is properly restricted to enforcement of violations of rights that figure in that structure, regardless of whether legitimate interests are set back.
I am not sure which way Feinberg would have gone, although throughout his writing his sympathies incline him more to Mill than Kant. It is clear, however, that this choice should be determined by our reasons for thinking that society is entitled to enforce grievance morality. That is, the precise shape of grievance legal moralism depends on the arguments for the moral entitlement thesis. This gives us further reason for exploring these arguments.
THE STATUS OF THE HARM AND OFFENSE PRINCIPLES
Feinberg substantially changed his view regarding the status of his harm and offense principles relative to the global legal moralist principle in the course of writing The Moral Limits of the Criminal Law. In its initial volumes, Feinberg sought to determine the legitimacy of the exercise of political power.27
FEINBERG, supra note 21, at 3.
Id. at 6–7.
In the concluding volume, however, Feinberg backed off this view, abandoning the thesis that the harm and offense principles exhaust the class of morally relevant grounds for criminal law;29
FEINBERG, supra note 3, at 321–323.
Id. at 323.
This conclusion seems to echo the liberal thesis of the earlier volumes, but his view of the nature and basis of this exclusion is very different in the concluding volume. Free-floating evils and harms to self, he conceded, have standing in public deliberations about the scope and direction of criminal legislation, but in most cases we can dismiss them as insufficient because they almost always lack moral weight sufficient to defeat considerations of personal autonomy and individual interests. Because considerations of grievance morality generally outweigh other moral considerations when it comes to enforcing morality, we can comfortably reject global legal moralism and embrace grievance legal moralism, subject to those few exceptions in which a free-floating evil presents a morally compelling case for criminal prohibition.
Feinberg made this adjustment largely in response to two powerful counterexamples to the liberal position he defends in the earlier volumes of Moral Limits. The two counterexamples are: (1) the malicious conception case, suggested by Parfit, in which a woman intentionally or recklessly conceives a child knowing it will be condemned to a life of suffering and severe disability but that is still in some sense worth living; and (2) Irving Kristol's chilling gladiator contest in which volunteer gladiators fight to a gory death, urged on by a ticket-holding crowd of thousands. These intuitively troubling cases challenge the liberal claim that the moral considerations they bring forcefully to our attention must be filtered out of our public deliberations about whether to prohibit and punish such behavior. It is a tribute to Feinberg's intellectual integrity that when he was unable honestly to dismiss these rare cases of intuitively legitimate if not fully justified criminal-law interference, he moderated his earlier statement of the liberal position so as to recognize their force.
The theoretical price Feinberg was willing to pay to accommodate our intuitions in these cases, however, is high. He did not merely weaken his liberal position just enough to admit these very rare cases; he abandoned the liberal project of drawing a line on a principled basis between those considerations that may ground criminal-law interference with individual liberty and those that may not. This is no merely marginal adjustment; it is a change that goes to the heart of the liberal project as Feinberg (following Mill) and many others have understood it. No longer may Feinberg's liberal talk of society's jurisdiction being limited to grievance morality, for on Feinberg's account, all of morality falls within that jurisdiction, just as it does for the global legal moralist. Feinberg's adjustment commits him, in effect, to global legal moralism. He may disagree with others about the moral significance of nongrievance evils, but that is a disagreement globalists have all along recognized. This point has always been that resolving that disagreement is the only game in town. The liberal position Feinberg earlier defended sought to change the game; his late shift in position put him back in the globalists' game. This shift did not commit him to illiberal support for the intrusion of the criminal law into our lives, of course, but then, neither was Devlin committed to such a view. Devlin just argued, with Feinberg's agreement, it now appears, that considerations of various kinds of free-floating evils cannot be ruled out of discussion.
Devlin may be right after all; maybe liberal limits on the deployment of the criminal law must be argued out publicly strictly on their merits. But I think Feinberg's reasons for abandoning the project are not sufficient. The case for a sharp distinction between the moral standing of a political community to deploy the criminal law to enforce morality and the justification of the exercise of this title remains strong. Of course, we still need an argument for the community's standing to enforce morality. That argument will have a lot to say about the scope of a community's standing. Our intuitions in recalcitrant cases such as malicious conception and gladiatorial contests must feel the pressure of this argument. Moreover, I believe it is possible to account for these two cases by means of principles of grievance morality—that is, I think the evils on which they focus attention are not properly thought to be “free-floating” but can be shown to be genuine personal wrongs done to the intuitive victims. I make the case for this understanding of the recalcitrant cases below, but first I defend the sharp distinction between jurisdiction and justification on which Feinberg's original liberal position rested. Then I set out an argument, constructed from resources available in Moral Limits, for the moral standing of political communities to enforce grievance morality.
STANDING
Fitzjames Stephen writes, “There are acts of wickedness so gross and outrageous that…they must be prevented at any cost to the offender and punished if they occur with exemplary severity.”31
JAMES FITZJAMES STEPHEN, LIBERTY, EQUALITY, AND FRATERNITY (1967), at 162; FEINBERG, supra note 3, at 44.
Some philosophers find this hard to accept. Gerald Dworkin, for example, argues that the fact that an action is morally wrong is a reason for not doing it and for criticizing and discouraging its performance by others. This, he claims, is enough to show that attempts by a political community, through its law, to condemn, forbid, and hence punish such actions are at least appropriate responses, although they may be ill-advised and even unjustified. “[B]ecause ‘wrongful’ implies ‘ought not to be done,’ the category of immoral acts establishes the same threshold for the legitimacy of state interference as does the category of harmful or offensive acts.”32
Dworkin, supra note 17, at 943. Similarly, Feinberg took the “bare minimal case for legal moralism” to be the following: “Since evils are, by definition, something to be regretted and prevented when possible, it seems to follow that the prevention of an evil, any evil, is always a reason of some relevance, however slight, in support of criminal prohibition” (FEINBERG, supra note 3, at 37–38; see also 125).
Joseph Raz makes an argument that appears, at least at first, to be similar to Dworkin's. He claims that it is a logical point that the fact that an action is good is reason (albeit not necessarily a conclusive one) to perform the action, and that the fact that a state of affairs is good is a reason (albeit not necessarily conclusive) to promote it.
[I]t does not make sense to say of a state of affairs that it is good but that fact is no reason whatsoever to do anything about it. If the value of our actions or of their consequences is no reason for action, then what can be such a reason? If there is a gap here, there is nothing to fill it.33
Joseph Raz, Facing Up, 62 S. CAL. L. REV. 1153–1235 (1989), at 1230.
Again, this argument is unconvincing unless is it understood not as a logical point but a substantive moral point. For from the fact that there is nothing to fill the gap between actions and one's reasons for performing them other than the value of actions or their consequences, it does not follow that there never is a gap but only that when the gap is filled, it is filled with value in the way Raz describes. Of course, Raz goes on to support a version of the doctrine of moral standing for holders of political authority (law and government officials). On his view, from the fact that an evil can be prevented or a good promoted by an entity claiming authority it does not follow that that entity has authority to proceed. That entity has authority only if the directives of the alleged authority enable ordinary people to comply better with the reasons they have for acting than if they acted on their own judgments of what those reasons require of them. That is, the authority of law in general (and a fortiori its authority to enact and enforce judgments of morality) depends on demonstration of its possession of a certain kind of expertise. It is not for us here to assess Raz's claim about the normal justification for authority. What it shows, however, is that the alleged logical link between an action's being good and reasons to do it does not directly support law's claim to moral authority.
So far I have tried to make a simple formal or logical point, but the thesis about the need to establish the moral standing of a political community to enforce morality rests on the observation that the topography of moral life and moral reasoning is not flat or uniform but, rather, stratified in complex and subtle ways. While some moral reasons may apply to agents wherever they find themselves, other moral reasons depend on an agent's location. Reasons for action are often indexed to certain positions or roles.34
This is not the place to discuss whether all moral reasons are indexed in this way or whether, on the contrary, some reasons are “agent-neutral” on at least one understanding of that term. It is enough for my purposes if we can agree that some reasons are indexed (“agent-relative”) and that it follows that we cannot infer from “this is evil” or “that is wrong” that “I must prevent it” or “I may punish it.”
One does not need any special standing to make moral judgments about the behavior of others or even (within limits) to express them. But there is an important difference between making and expressing moral judgments, on the one hand, and holding a person to his duties, on the other. In fact, morality appears to be exceedingly tightfisted when it comes to distributing standing to individuals to enact and enforce its dictates. Perhaps it is just and right that Pol Pot suffer for his sins, but it is not for you or me to inflict that suffering, to exact that justice. In contrast, parents may be in a position with respect to their children to enforce the dictates of morality as they see them because they have a special responsibility for their children's moral nurture. That responsibility is accorded parents in the name of the good (moral and otherwise) of the children and not in the name of morality itself. In the world of adult moral agents, individuals generally have no analogous claim. If this is true of individual moral agents, it is even more true of political communities. We cannot merely infer from the fact that some action or state of affairs is evil that we as a political community have standing to prevent or punish it. This is true regardless of the gravity of the evil, for standing is not a function of the weight of the reasons in question but rather of the moral authority of agents to act on those reasons.
FEINBERG'S ANTIPATERNALISM PRINCIPLE
Feinberg's understanding of his antipaternalism principle illustrates this relationship between the evil of some state of affairs and a political community's reasons for taking action to prevent it.35
JOEL FEINBERG, HARM TO SELF (1986), chs. 18–19.
FEINBERG, supra note 3, at 6.
Feinberg does not minimize in any way the evil of injury or death. His point is, rather, that because “sovereignty is not the kind of value that can be weighed against particular evils on a common scale…no set of dangers to the actor himself could outweigh his right to determine his own lot within the proper boundaries of his sovereign domain.”37
Id. at 6; see also FEINBERG, supra note 35, at 53, 93–94.
FEINBERG, supra note 35, at 53.
Feinberg's argument correctly assumes that the appropriate response to a given value depends on the nature of the value. The appropriate manner of response to the value of autonomy is to recognize and respect a kind of disability, a lack of a certain kind of power or authority, on the part of everyone but the agent herself to act on considerations of her own good. Respect for autonomy, according to Feinberg, entails that where the most important matters of life are concerned, no one other than the person whose life is in question has standing to intervene (without that person's leave). Whether this is so—that is, whether there is such a protected zone of personal sovereignty—depends on the nature of the value of personal autonomy and on the most appropriate way for that value to be respected, protected, and promoted. The denial of standing, in matters of fundamental personal concern, to all but the agent involved (extended to loved ones, perhaps) is the product of a substantive moral argument, albeit one at a theoretically fundamental level.
The question for us now is whether an analogous argument can be constructed for grievance legal moralism.39
Note that the aim of the discussion in this section is to identify a certain form of argument, not to endorse Feinberg's antipaternalism. As we shall see below, there may be reasons from within grievance morality to accept some quasi-paternalist arguments for legal enforcement.
GRIEVANCE MORALITY AND MORAL STANDING
In Feinberg's view, grievance evils—harms and personal offense—are a special category of evils marked by their distinctive nature and their moral importance. Indeed, it is in virtue of their nature that they have their relatively great moral weight. In the following passages, Feinberg draws implications regarding the standing of criminal law to enforce grievance morality from the nature of these evils:
When a person has been harmed in one of his vital interests, or even when he has been seriously inconvenienced to his great annoyance [i.e., offended], a wrong has been done to him; he is entitled to complain; he has a grievance to voice; he is the victim of injustice; he can demand protection against recurrences; he may deserve compensation for his loses. But no one is entitled to complain in the same way when a free-floating evil is produced by another's action.40
FEINBERG, supra note 3, at 67.
This characterization applies not only to proper harms but also to serious offense, according to Feinberg. “Offense,” he writes, “belongs to that class of evils…that are directly suffered by specific persons who then [are in a position to] voice real grievances…. Their victims are wronged even though they are not harmed.” And he concludes, “[f]or that reason alone, it is morally legitimate for the criminal law to be concerned with their regulation.”41
FEINBERG, supra note 24, at 49; see also 25.
Grievance evils, Feinberg argues, are wrongs done to specific persons. Grievance evils are of immediate personal concern to them; the evils directly affect their own good and interests, goods in which they have a direct and personal stake. These goods ground rights, and these rights imply duties on the part of others to respect and even promote the goods and interests that the rights are designed to protect. More important for present purposes, the rights also accord certain special moral powers to the possessors of the goods or interests.42
JOEL FEINBERG, FREEDOM AND FULFILLMENT (1992), at 204.
(1) The right to make claims and (the opposite side of the same coin) the right to voice grievances.
Not only does this “right” involve having “good reasons” for feeling aggrieved—as in “I've got a right to sing the blues”—but, more important, right-bearers are also put in a special position to give voice to the grievance against those who have wronged them.43
Id. at 228–231.
(2) Others on whom duties to respect, protect, or promote the interests of the rights-bearers are imposed are answerable to the rights-bearers.
The duties are owed to the rights-bearers, and thus the rights-bearers are in a special moral position to hold others to their duties and to hold them responsible for failing to fulfill those duties. This often also includes the rights-bearer's power to release others from their duties. Claims arising from such personal goods and interests also generate a third moral power:
(3) Rights-bearers have the power to call upon others to act in their behalf to hold people to duties owed to them and to make such people answerable when they violate their duties.
Feinberg does not often explicitly acknowledge this power, but it is implicit, for example, in his defense of rights of animals and the unborn.44
FEINBERG, supra note 4, at 159–184.
It does not follow but it is not a great stretch to say that such proxy representation and actions necessary to back it up can be within the moral competence of rights-bearers who are able to make claims on their own. If we are sometimes morally in a position (and perhaps morally required) to act as proxies to represent, assert, and defend the rights of certain animals and the unborn, then a fortiori, it would seem, competent rights-bearers have the power to call upon others likewise to act in their behalf. Part of what it is to have a genuine moral grievance, Feinberg seems to say, is that one can demand protection against violations of one's rights.45
FEINBERG, supra note 3, at 67.
Finally, if rights-bearers have the power described in 3, then this must be the case, at least in part, because morality recognizes to some extent the maxim that there is no genuine right without a remedy or at least some degree of protection, even when the rights-bearer is not in a position to provide the protection or exact the remedy. It was something like this thought that led Kant to the conclusion that we are all duty-bound to do our parts to institute a structure of public right, to sign the social contract, and thereby establish public authorities. Whether or not Kant was correct about this, we can reasonably conclude from the above argument that if there is a minimally legitimate public authority in place in our political community, rights-bearers have the power to call upon that authority to protect their rights and respond effectively to their moral grievances. That is:
(4) Rights-bearers can demand protection of their rights from public authorities.
It is a small step from 4 to the conclusion that public authorities, acting in the name of the political community as a whole, have standing to respond to rights-bearers' calls for protection, for otherwise the right to call upon the law to enforce these rights would be empty. Thus while grievance evils are wrongs to specific persons, and those who wrong them are directly answerable to the persons they wrong, wrongdoers may also be answerable to public authorities acting in behalf of the aggrieved.
If this argument is sound, then the political community's standing to enact and enforce moral principles is thereby rooted in the nature of grievance evils. Suppose someone threatens to interfere with actions they regard as serious wrongdoing. The wrongdoer might demand: What business is this of yours? Where grievance evils are involved, one effective response would be: The business is mine because the good that is threatened is mine. It is not just the evil, even if very great, that makes it my business, that makes you answerable to me; it is, rather, the fact that my good is at stake. Another response would be: The business is mine because her good is at stake and I am in an appropriate relationship with her. The simple core idea here is that grievance evils are evils of the kind that accord to victims and others who bear appropriate relations to them standing to interfere; often, if not always, they are also of sufficient moral weight to justify such interference.
I believe that something like this argument lies behind Feinberg's endorsement of the moral entitlement thesis and grievance legal moralism. It proceeds in two stages. At the first stage, Feinberg analyzes the nature of grievance evils. They are not impersonal evils but, rather, violations of personal goods or interests and hence are wrongs done to someone that put the wrongdoer and the victim in a special relationship. He then maintains that these are the kinds of goods that are appropriately respected by recognizing their possessors' rights to them. At the second stage, he draws implications from this according of rights, including the moral authority of the political community to recognize and enforce them. The arguments of the first stage are substantive moral arguments, albeit at a fairly high level of abstraction. They are arguments to the effect that the values recognized by grievance morality are of the kind and moral weight that ground individual rights. The argument seems to parallel the argument for the antipaternalism principle from the nature of autonomy. The argument is that the appropriate way to respond to the goods about which grievance morality is concerned is to recognize the rights of their possessors. Moral rights define a special kind of ritual of recognition of the dignity of persons as sources of moral claims on others.46
FEINBERG, supra note 4, at 155; FEINBERG, supra note 42, at 204, 225–227.
FEINBERG, supra note 42, at 226.
Feinberg seems to regard the second-stage arguments differently. He takes them to be conceptual arguments, working out the logical implications of according rights to a person.48
JOEL FEINBERG, SOCIAL PHILOSOPHY (1973), at 64–67; FEINBERG, supra note 4, at 148–152.
This way of viewing Feinberg's argument also fits with an attractive view about the nature and moral foundations of rights.49
JULES COLEMAN, Rethinking the Theory of Legal Rights, in MARKETS, MORALS AND THE LAW 28–63 (1988); Gerald, J. Postema, In Defense of “French Nonsense”: Fundamental Rights in Constitutional Jurisprudence, in ENLIGHTENMENT, RIGHTS, AND REVOLUTION 107–133 (N. MacCormick & Z. Bankowski eds., 1989), at 109–115.
If we understand the nature of the grievance argument in this way, we must admit that we have as yet only the outline of an argument, a sketch of its main premises without all the needed connective tissue. The powers described in points 1 to 3 are presumably parts of a package that define the appropriate manner in which to respect the values recognized by grievance morality. From Feinberg's work we have only a rather general idea of the values and principles of grievance morality. Autonomy and human fulfillment are included, surely, as are all those legitimate interests that may vary from person to person but that are likely to overlap in large measure, at least when they are broadly described. Equally important is the value of recognition or status as a member of one's community that Feinberg calls “dignity.” These are all personal goods, components of each person's own good. It is not difficult to grant that these are just the kind of values that are appropriately respected by according their rightful possessors the right to voice grievances and to make claims. In most cases, they also are morally important enough to ground duties on the part of others to respect or even promote them, duties that are owed to the rights-bearer.
Less straightforward, but no less important, is the case for including 4 in the rights packages rooted in grievance morality. We must supplement Feinberg's discussion here. The liberal tradition offers at least two lines of argument for this purpose. The first is suggested by the social-contract tradition. In its Lockean version, the argument would be that if grievance goods are morally weighty enough to justify according rights-bearers the power to hold others to the duties owed to them, then they are also weighty enough to authorize those same rights-bearers to punish those who violate these duties. Further, respect for autonomy requires that the rights-bearers have the power to waive or transfer this authorization to punish. To call on public authorities to hold others to their duties either is itself a tacit transfer to public authorities of this authorization to punish or calls into play a prior transfer. On this argument, the political community has standing to enforce grievance morality by virtue of the authorization transferred to it by it individual members.
A Kantian version of the argument does not assume an individual right to punish and so does not involve a transfer of such a right to the political community. Rather, it merely points out the need for a regime of rights, and hence a political authority entitled to enforce them, as a necessary condition of the morally fundamental relationship of right among free and equal moral persons. Among human beings, in the absence of political authority with the title to enforce the regime of rights understood as a structure of equal liberties for all, right could not exist.
Despite his commitment to the morally fundamental status of personal autonomy, I am not sure Feinberg would be comfortable with either of these contractarian arguments. An alternative route to the conclusion might lie in a Mill-inspired utilitarian direction, but, despite his manifest debt to Mill in many respects, I do not think Feinberg would heartily embrace Mill's foundational utilitarianism. He might find a somewhat different line of argument more congenial. Proceeding from the value of dignity, one might argue that rights give structure to a public ritual of respect for dignity which is practiced by individuals and by the community. Individuals respect the dignity or status of comembers of their community in part by holding themselves answerable to rights-bearers. The community acknowledges individual dignity and gives public recognition of an individual's status in the community by seconding and supporting the individual's efforts to hold others to their duties to honor or protect grievance goods. This argument, like the others mentioned above, needs to be elaborated a good deal before it can be assessed, but only if some such argument (or some other argument broadly consistent with his liberalism) is successful can Feinberg's defense of grievance legal moralism get off the ground.
THE LIMITS OF STANDING
However, even before such arguments are elaborated, it is apparent that they face two major problems. First, they assume that legally enforceable wrongs are ultimately individual, private wrongs. But this leaves an important dimension of criminal law undefended. Public enforcement of morality is not merely enforcement of morality by public means, but enforcement of public wrongs. We distinguish the task of criminal law from the tasks of torts, property, or contracts law precisely in terms of this distinction between public and private wrongs. Hence if we accept the grievance account of the law's standing to enforce morality, we may be forced to rethink the task and appropriate techniques of criminal law. Or we must look for another argument to support them.
This suggests a more fundamental problem facing the grievance arguments, however they are elaborated. The arguments at best support the conclusion that the political community has standing to enforce grievance morality. But grievance legal moralism makes the stronger, exclusive claim that the political community has standing to enforce only grievance morality. Of course, the above arguments themselves do not support any more extensive authorization, but this does not rule out the possibility of another argument doing the job. The above arguments from grievance morality gives no support for any conclusion regarding the limits of the community's standing to enforce morality. Thus even if at least one of the above arguments is sound, the case against global legal moralism has not yet been made. We might say, with Feinberg, “To prevent [people from doing or causing free-floating evils] with the iron fist of legal coercion would be to impose suffering and injury for the sake of no one else's good at all. For that reason the enforcement of most non-grievance morality strikes many of us as morally perverse.”50
FEINBERG, supra note 3, at 80.
Again, we might look to the liberal tradition for arguments to bolster Feinberg's case for grievance legal moralism. For example, we might press the Lockean argument we briefly touched on before. In the absence of transfer of rights to the political community by its individual members, we might argue, the community and its agent, the government, simply have no rights. Hence in the absence of a case in grievance morality for legal intervention, no standing is possible, since by hypothesis there are no rights that could be transferred to ground that standing. Or we might argue on Kantian lines that the only reason for establishing coercive political order—for working to establish a civil society with an effective legal system—is to secure an effective structure of rights. Respect for the fundamental value of autonomy requires that it be restricted only in the interest of greater protection of autonomy—coercive intervention is justified only as a restriction of a restriction of autonomy. If either of these arguments is credible, then the global legal moralist is effectively challenged.
Again, I am not sure Feinberg would warmly embrace either of these arguments.51
Locke does not figure much in Feinberg's thinking, but Kant appears from time to time. Although Feinberg has some unkind things to say about the Kantian understanding of autonomy (id. at 94–97), he might have been willing to entertain an argument of this sort from Kantian political morality.
Perhaps we can appeal to the special responsibility of the government or the community as a whole to enact and enforce nongrievance morality. What could that responsibility consist of? Sometimes such responsibility is grounded in a special relationship between agent and beneficiary—as in the case of parents who are charged with the moral well-being of their children. But nongrievance evils are not in any way attached to or related to the good of persons, so it is not clear how any relationship between persons could ground the claim to special responsibility. Of course, the responsibility might be conferred or imposed on some persons or even on a community as a whole, but we must then say who or what does the conferring and show in what that party's title rests. Conferred or devolved title presupposes standing of the source. So such an appeal only pushes the argument back a stage. And if our earlier arguments were sound, the mere fact that an evil can be punished or prevented does not fill the gap. Thus it is very difficult to see how an argument for the special responsibility of the political community to respond to nongrievance evils might go.
Could an argument be made from the political community's stake in prevention of such evils? Devlin thinks so. He argues that a political community is entitled to enact and enforce morality so long as it is genuinely the community's public morality. A version of his argument might go as follows.52
see Postema, supra note 19, at 163–166.
This argument has some plausibility, but only if we can make sense of the idea of the integrity of the moral life of a community and can insure that the morality enforced is genuinely public. In the central chapters of Harmless Wrongdoing (especially chapters 29, 29A, and 30) Feinberg explores a number of reasons for being skeptical of both claims. I am not yet prepared to abandon the attempt to work out an argument along these lines, but I concede that Feinberg's skepticism is entirely reasonable. Rather than pursue this matter any further, however, I want to conclude by considering again the two cases that caused Feinberg to compromise his grievance legal moralism.
THE TROUBLE CASES
Feinberg is right to be troubled by the gladiatorial-contest and malicious-conception cases. The argument for criminal prohibition of the behavior involved in these cases is intuitively powerful and not plausibly dismissed as irrelevant to the issue. Feinberg's liberal position must be adjusted to deal with them; however, I think Feinberg makes the wrong adjustment. Plausible arguments for deploying the criminal law against such behavior can be made from grievance morality. Consider each trouble case in turn.
Gladiatorial Contests
It is not difficult to defend criminal prohibition of gladiatorial contests in terms the harm principle can fully acknowledge. Surely the most fundamental interests of the gladiators are put at enormous risk, and the potential gains very likely do not outweigh those risks. Viewed on balance, the interests of the gladiators are set back. Moreover, their most fundamental rights are flagrantly violated—the most basic forms of moral decency owed by one person to another are denied them—first of all by their fellow gladiators, but even more by the promoters, who put them in circumstances in which they must fight for their lives. The spectacle, as typically portrayed, is unspeakably brutal and inhumane. Undeniably, harms are done, and wrongs are done to those suffering the harms. In the absence of fully informed and uncoerced consent, the wrongful harming is a compelling reason for legal intervention. It is exactly the kind of consideration a political community has undeniable standing to consider.
Kristol's challenge, of course, lies in his claim that the case for criminal intervention is no less compelling if all the parties involved have freely consented. Feinberg replies that we find the case for criminal prohibition compelling because we are deeply skeptical about the claim that the gladiators' consent could be free and fully informed. Feinberg is right about this, of course, but it follows from this argument that we have reason to support criminal intervention only if less intrusive licensing measures cannot offer adequate safeguards against involuntary participation.53
Richard Arneson, Liberalism, Freedom, and Community, 100 ETHICS 368–385 (1990), at 373.
The more serious concern is that if the consent is indeed free, Feinberg must conclude that this is a case of a harmless wrongdoing. It is not strictly speaking a free-floating evil, but it is close kin, because their consent waives the gladiators' right not to be subjected to a violent, humiliating, and morally degrading death. And if no grievance evil is done by the gladiators to each other, it is hard to argue that the promoters or paying spectators wrongfully harm them by offering them a chance to participate in the spectacle, for a consideration, of course. Notice that in Feinberg's view, consent alone removes this case from the jurisdiction of the criminal law. The case for criminal prohibition is as compelling as ever, but the gladiators' consent has put that case beyond the reach of the political community. Although consent is not enough to weaken the evil or even the wrongfulness of the activity even a little, it is enough to vacate utterly the claim that a wrong was done to the gladiators. Yet, Feinberg admits, the evil in this case is surely a relevant and maybe even decisive reason for prohibiting the activity.
I agree we have legitimate reason to invite the intervention of the criminal law in this case, but I think the reason is rooted securely in grievance morality. Feinberg is mistaken in thinking that the evils in this case float free from the interests, rights, and fundamental good of the people involved. These evils, indeed these wrongs, are anchored in the good of the gladiators, if any evils or wrongs are. Specific human beings suffer them; we can give voice to moral outrage in the name of the good and the status as a moral person of each of them. Moreover, despite their consent, each of them is entitled to give vent to resentment and moral protest at their treatment; they are entitled to grieve at grievances they have foregone through morally and prudentially ill-advised consent.54
“Then can I grieve at grievances foregone,/And heavily from woe to woe tell o'er/The sad account of fore-bemoaned moan,/Which I new pay as if not paid before.” William Shakespeare, Sonnet 30.
This argument rests on the view that that certain wrongs done to other human beings remain wrongs done to them regardless of their victims' consent. Consent is the exercise of a certain moral power, but that moral power is not unlimited. To think otherwise is to confuse consent (and the volenti principle) with the more fundamental moral value it serves, which, in Feinberg's view, is autonomy. Limitations on consent are not automatically restrictions of autonomy; indeed, it is conceivable that autonomy is best served in some cases through limits on consent even when such consent is full and free. Fully competent moral agents lack the power to release others from certain forms of treatment of them. Thus the wrongs are done to them regardless of consent or waiver. Political societies are entitled to deploy the criminal law to prohibit and punish such wrongs. Uncanceled wrongs are done by gladiators to other gladiators and by the promoters and supporters of the contest to all the gladiators. Put another way, the argument is not that we are entitled to prohibit people from subjecting themselves to degrading or dehumanizing treatment but, rather, that we are entitled to restrict their ability to enlist others in this endeavor, and this restriction is not directly imposed on them but, rather, on others whom they would like to enlist. We are morally bound to respect the humanity in the person of others, even when they do not. Thus, at a certain point, we are entitled to prohibit others from exploiting for their own amusement or financial gain the moral weaknesses of such persons.
Feinberg at one point seems to acknowledge and feel the force of this argument,55
FEINBERG, supra note 35, at 79.
Id. at 386, n. 35.
If this is right, we can argue for criminal prohibition of such contests from within grievance morality. No compromise with global legal moralism is required, although we must weaken Feinberg's treatment of the volenti principle as absolute. However, this is not to compromise our commitment to individual autonomy or dignity but, rather, it is to serve these fundamental values better.
This must be kept in mind as we consider possible extensions of the argument for the legitimacy of criminal prohibition of gladiatorial contests. For we are forced to ask what exactly the limits are on the wrong-canceling force of consent? Can we mount an argument along the same lines to support the standing of political society to prohibit, for example, dwarf-tossing,57
New York State Alcoholic Beverage Control Law, 6b; see MORALITY, HARM, AND THE LAW (Gerald Dworkin ed., 1994), at 193.
Barnes v. Glen Theatre, Inc. 501 U.S. 560 (1991).
United States Public Health Code, Section 274e “Prohibition of Organ Purchases”; see Dworkin, supra note 57, at 145.
Two related concerns structure this thinking. First, the argument must proceed strictly within the domain of grievance morality. The evils or wrongs that are identified as legitimate grounds for criminal prohibition must be shown to be evils suffered by or wrongs done to individual moral persons by others. This rules out the kind of global legal moralist argument indulged by Justice Scalia in Glen Theatre:
The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, “contra bonos mores,” i.e., immoral.60
Barnes v. Glen Theatre, 501 U.S. 560, 575 (1991) (Scalia dissenting).
It is not enough, on the argument I have suggested, to insist with emphasis that the behavior is wrong (let alone that for ages it has been believed to be wrong). The case must be made that it is a wrong to the parties involved. Second, the argument must take the form of showing that in cases like those under consideration, the values of autonomy and moral dignity of the individuals involved are better served by an unwaivable right to certain kinds of behavior (respect for bodily integrity, for example). This will be a difficult argument to make in many cases, but as the gladiatorial contest cases shows, it is not impossible.
It is an interesting question whether acknowledging these limits on the volenti principle would commit Feinberg to compromise his antipaternalism. If so, my offer to save him from compromising his principled rejection of global legal moralism might look like robbing Peter to pay Paul. This is not the place to discuss this matter in detail, but there is reason to think that his antipaternalism is not seriously at risk. This reason lies in the fact that there is an important difference between Feinberg's concerns about state paternalism and the limits on the volenti principle I have urged. The former arise with respect to questions about one's sovereignty regarding one's own good. The latter, however, are concerned with matters of moral wrong, wrongs to oneself. The central question in the latter case is the extent to which the voluntary consent of fully competent moral agents can evacuate wrongs done to them. Recall that Feinberg says “the voluntarily risked injury is treated by the liberal as if it were no evil at all.”61
FEINBERG, supra note 3, at 6.
Are all personal wrongs liable to this kind of elimination? Why is this so? And if not, at what point does the consent of individual moral agents lose its normative power? These rarely discussed questions are fundamental questions of moral philosophy, not merely questions about the limits of state power. It seems reasonable to think that, however they are answered, they are different enough from our concerns about paternalism to be treated as different inquiries such that answers to one such inquiry does not automatically pose challenges to the other.
Malevolent Conception
Imagine a woman who chooses to conceive and bear a child knowing that there is a very high probability that her child will be severely deformed and will live a limited human life full of suffering and who chooses it in order to provide herself with a meaningful focus for her energies. Of course, the case is not difficult if we can conclude that from the point of view of the child, her life is not worth living and so it would have been better if she had not been born. But Feinberg imagines a case in which this is not obvious. Thus he feels compelled to deny that, despite her suffering, the child is put in a harmed condition by her mother's malevolent decisions, and if she is not put in a harmed condition, then she cannot be said to have been harmed in the sense required by his harm principle. Not having been harmed, she is no victim and has no grievance—which is not to say, of course, that what the mother did was not evil or even wrongful, but only that she did not do wrong to the child. So if we think that the reasons for our condemnation of the mother are also reasons for prohibiting her behavior, we must conclude that this is so despite the fact that the evil the mother did was, strictly speaking, free-floating. Feinberg is willing to allow this exception to his harm principle on the ground that it is exceedingly rare and so represents no significant threat of being repeated in other situations.62
Id. at 327.
Again, I think there is reason to try to adjust Feinberg's view at points other than by making an exception, albeit in itself apparently only marginal, to his grievance legal moralism. There are two places to look for the kind of slack we need to accommodate our strong intuition that criminal prohibition of the mother's behavior would not be illegitimate. First, we might look again at Feinberg's notion of a harmed condition. What causes trouble in the malevolent-conception example is not that there is no significant suffering but, rather, that (1) there is enough good in the child's life to balance the suffering to the point that the child's life is not entirely without value to her; and (2) the only alternative to living with this suffering is not having been given life at all. For Feinberg to determine whether a person has been harmed in the minimal sense that her interests are adversely affected by some action, we need to look at the effects of that action on her interests overall and on balance. I wonder whether this is always the best understanding of being harmed or put in a “harmed condition.” Especially when fundamental interests are set back, it makes great sense from a linguistic perspective, but more importantly from a moral perspective, to say that the person has been harmed even when there are certain compensating beneficial effects. That is, it makes moral sense and is not inconsistent with a general liberal view of morality to take especially important interests as worthy of separate moral consideration.
If we do so, and if, as is likely, the kind of interests adversely affected in the malevolent-conception case are among those that warrant such consideration, then it is possible to say the child was harmed. Or rather, it makes sense to say so if we are permitted to understand the condition in this case relative to some baseline other than a scenario in which this suffering does not occur. Such a baseline might be that of a life of minimal human decency and fulfillment. It would be a mistake to say that this child was made worse off than she otherwise (in a condition without the suffering) would have been. But that does not seem to be the only dimension along which we can legitimately assess her condition in moral terms. The suffering would be a harm from her point of view if it is truly a kind of suffering which she must endure. This harm is not free-floating; it is anchored to her, to her perspective on her life and its quality.
There is a second way to locate our moral intuitions squarely within grievance morality. To see that the evil done by the mother is not merely free-floating but, rather, is clearly anchored to sake of the child, consider what the child might say to her mother. She would be entitled to say, for example: You cared nothing for me when you decided to conceive, nor do you care for me now, for both then and now I represent to you only an occasion to exercise your nurturing talents. Yet to serve your needs, I must suffer. This is as powerful an expression of moral grievance as any that fit Feinberg's category of grievances, more powerful by a large margin than the protests one might lodge against inconsiderate neighbors who create an offensive nuisance or engage publicly in offensive behavior we cannot escape.
One way to understand the nature of this grievance is to see it as expression of the judgment that, independent of the question of harm, the mother wronged the child.63
Andrew Altman suggested this line of thought to me.
If arguments along the lines I have suggested succeed, then what Feinberg should do is to expand slightly his view of the scope of grievance morality by adjusting his understanding of the limits of the volenti principle, of morally relevant harm, and of the possible sources of personal wrongs, rather than compromise his grievance legal moralism. And thus, if his argument for the exclusive standing of our political communities to enact and enforce grievance morality is sound, then he can accommodate these recalcitrant cases within the scope of their jurisdiction to prohibit the offensive actions by means of the criminal law.
Of course, with respect to both the gladiatorial contest and the malevolent conception case I have employed an ad hoc strategy here in defense of Feinberg's grievance legal moralism. It is possible that with some ingenuity, we can construct other trouble cases with intuitive force equal to that of the two cases we have considered but that cannot, however, be shoehorned into grievance morality either by discrete limits on the volenti principle or by revisions of our understanding of either the harm or wrong done to individuals. But of course, one of most important and lasting legacies of Feinberg's philosophical work is that it teaches us always to be open to new challenges to our favorite principles and honestly to allow their force to press us to think deeper and harder about those principles. It takes nothing away from the monumental achievement of The Moral Limits of the Criminal Law to acknowledge that there is still much philosophical work to be done.
APPENDIX: THE STRANGE AND GHOSTLY INFLUENCE OF ONE PROFESSOR JOSIAH S. CARBERRY
If we are entitled to give any credence to evidence scattered throughout his published works, Professor Feinberg struggled most of his career with evil ministrations and malicious obstructions from his sometime colleague, Professor Josiah S. Carberry. In the interest of setting the historical record straight, I wish here to disclose with some regret the part I may have played, unwittingly, in some of Carberry's ghostly torment of Professor Feinberg in the last decade of his life.
At least part of the documentary record of the Carberry-Feinberg struggle can be found in prefaces of several of Feinberg's books. In Doing and Deserving (1970), for example, Feinberg writes: “For whatever merits these essays possess I am indebted to many people. [To list them all] would take many pages and give no one his proper due. Fortunately, there is no similar problem in respect to the book's flaws and errors. They are due to the influence of my former colleague, Professor Josiah S. Carberry, and I cheerfully hold him responsible for them.”
Twelve years later, in Rights, Justice and the Bounds of Liberty (1982), Carberry gets a grudging acknowledgment. “Once more,” Feinberg writes, “I am indebted to my former colleague Josiah S. Carberry for his help with these essays, but given his proven unreliability, I am not inclined to thank him for it.” In Harm to Self (1986), gratitude worked in reverse: “On this particular volume I received no help from Josiah S. Carberry. For that too I am grateful.”
By the opening volume of The Moral Limits of the Criminal Law (1984), Feinberg could no longer disguise the conflict that had been seething under the surface for nearly fifteen years; indeed, by that time it appeared that the two were court-bound. “Philosophical helpers have been too abundant to acknowledge individually in this limited space,” Feinberg writes with his accustomed grace, adding:
I hope I have remembered them all in the notes. In any event, they know who they are, and I want them all to know that I am immensely grateful for their help. My former colleague Josiah S. Carberry will claim to be among their number. He may even go so far as to sue me for plagiarism. Let him sue; he won't have a chance.
However, no record of Carberry v. Feinberg is to be found in the archives of Tucson Civil Court. The reason was that Carberry died before he could file the suit he had meticulously prepared. Carberry, poor man, appears to have had just one brief obituary notice. It can be found in Feinberg's Harmful Wrongdoing (1988). “Finally I must mention Professor Josiah S. Carberry, word of whose death has just reached me. De mortuis nil nisi bonum. On his behalf it must be said, in all fairness, that his actions were rarely as bad as his intentions.”
One might have been forgiven for thinking that this sad saga had thus come to a close, yet, mirabile dictu, reading the opening pages of Freedom and Fulfillment (1992), I discovered a (one-sided) report of further malicious encounters between the long-suffering colleagues. Feinberg writes there:
For a variety of reasons it has become my custom to mention my former colleague, the late Josiah S. Carberry (1874–1988), in the acknowledgments for my books. As I reported at the time, Carberry died shortly before the publication of Harmless Wrongdoing a few years ago. There would be no point in mentioning this matter again were it not for the fact that I have recently received a letter from Carberry in which he argues with his usual fanatic stubbornness that he is not dead! His argument, in my opinion, is weak and contrary to all the known evidence. It combines a misapplication of the Cartesian cogito with the kind of self-deception that characterized Carberry's long life. Some people simply cannot bear to accept the truth about themselves.
Up to this point, I was just an onlooker, fascinated by the by-now-ghostly saga but still uninvolved. However, I was soon drawn into the fray. It all began when I was asked to prepare some remarks on Feinberg's work for a symposium in Atlanta at the Eastern Division of the American Philosophical Association (APA) on December 29, 1993. My opening comments were later transcribed. They went as follows:
While searching for a theme for the following remarks I received an email message from Josiah S. Carberry. He apparently got wind of plans for these proceedings and wanted to press his deep and long-standing grievances against Feinberg. I was reluctant to reply but also unwilling just to ignore the message, since I had learned years ago from Joel that the dead can be harmed (or their interests, at least, can be set back), although it was not clear whether a dead (or widely reported to be dead) fictitious person could have had interests to be set back. (Truth be told, I was less concerned about whether the dead can be harmed than about whether the dead can do the harming!)
Carberry, in his usual aggressive style, did not give me much time to think about the problem. He shot back a second message in which was included a long list of grievances against Feinberg. He objected to Feinberg's stubbornly ungrateful tone and his gratuitous attacks on Carberry's character and good name, all taken to the point of denying him the respect due to him as a person.
I replied that this was no business of mine, that if there was evil done him, it was not my place to judge or to intervene.
Carberry replied immediately: “You don't understand!” he said. “This is not a matter of some free-floating evil, a mere victimless wrong! Feinberg had directly and personally wronged me and I am entitled to your aid in pressing this grievance against the malefactor.” He was claiming his due from me at that point. “What better forum than the APA to expose Feinberg's dark side?” he asked.
However, convinced of Carberry's unreliability (after all, how far can you trust a guy who doesn't stay dead), I declined to take up his cause. But, unlike Feinberg, I will publicly thank him for giving me the idea for this paper.
I inadvertently deleted this email exchange, so you will have to take my word for its actually happening. However, I do have full hard-copy documentation of the next two exchanges. Not long after returning home from the APA, I received a personal note from Professor Feinberg, dated January 6, 1994. It reads in part: “Dear Jerry, I have just finished listening to the tape of your…talk…. Warmest best, Joel. P.S. I mellow with the years. I am even able now to forgive Josiah Carberry. After all, he did me the favor, a couple of years ago, of dying. J.”
This was not the end of the matter, however, for less than two weeks later I received a postcard dated January 19, 1994. It read, “Dear Jerry, Could you send me a copy of the talk you gave at Atlanta? I would much appreciate it. I think we've really got Feinberg this time! Maliciously yours, Josiah Carberry.” The postcard had no return address but it was postmarked “Tucson, AZ.” Some philosophers don't die, they just retire to Arizona.
