The hallmark of modern liberalism is its embrace of something like John Stuart Mill's harm principle and its concomitant rejection of “legal moralism,” the view that “harmless immoralities” may legitimately be punished.Footnote 1 Attacks on liberalism generally accept, at least provisionally, the harm principle but then go on to claim either that the principle is empty or indeterminateFootnote 2 or that harmless immoralities are in fact harmful within the principle's proper concept of harm.Footnote 3
Joel Feinberg, Mill's twentieth-century heir in defending the harm principle and a Millian version of liberalism, makes a few concessions to those who would countenance punishment of harmless immoralities, the so-called legal moralists. One concession is advertent. Feinberg concedes that some gross immoralities, such as Irving Kristol's hypothetical of gladiators voluntarily fighting to the death before paying throngs of willing spectators, might be prohibitable.Footnote 4 The other concession is inadvertent. Feinberg believes that the state could legitimately punish some offensive conduct, namely, conduct that amounts to a “nuisance” and the perception of which is difficult for others to avoid.Footnote 5 But as I attempt to demonstrate elsewhere, most offensive conduct, including the category of nuisances that Feinberg would endorse prohibiting, involves indignation about norm violation—the conduct is offensive because it is or is thought to be immoral.Footnote 6 (It is not immoral because it is offensive.) And as Feinberg recognizes, the offense can be caused by bare knowledge and does not depend on the conduct's being directly perceived. Feinberg thinks that the offense caused by bare knowledge of immoral conduct, as opposed to that caused by perceiving it, could not count as a wrong to the knower. Because I disagree, however, I conclude that once the harm principle is extended to cover cases of nonsensory offense, it will collapse into legal moralism.Footnote 7 Rejecting this extension, however, extracts a high cost in terms of liberalism's plausibility—as Feinberg realizes and as his examples of offensive nuisances surely demonstrate. I return to the arguments regarding offensive conduct below.
In this article I argue that aesthetic regulations premised solely on preserving beauty or naturalness are forms of legal moralism. Environmental depredations offend and are deemed objectionable irrespective of whether they cause serious setbacks of interests, the kind of setbacks of interests that come within the scope of the harm principle. They offend because they flout moral norms that are not premised on the harm principle.
I. HARMLESS IMMORALITIES AND LEGAL MORALISM
Before getting to aesthetic regulations, I should say a bit more about the category of harmless immoralities—what Feinberg calls “harmless wrongdoing”—and legal moralism, the acceptance of the legitimacy of restricting liberty to engage in acts that fall within the category of harmless immoralities.
My first point is that although Feinberg—and some legal moralists—distinguish between restrictions on liberty found in the criminal law and other measures designed to discourage immoral behavior (or encourage admirable behavior), such as taxes and subsidies, I find that distinction quite problematic. When, say, prostitution is especially taxed, but the public schools, using that tax money, teach students how to repair cars but not how to be successful prostitutes, the government is seeking to make prostitution a less desirable activity and thereby to discourage people from engaging in it. Although Feinberg's concern is only the criminal law, his predecessor, Mill, did not so limit the harm principle and indeed extended it to informal social sanctions.Footnote 8 Differential taxation and subsidization would seem to count as restrictions on liberty. Taking resources from those engaging in harmless immoralities and giving them to those whose behavior is more admirable surely restricts the liberty of the former and expands that of the latter.Footnote 9 So although I focus here on aesthetic regulations that are ultimately backed up by the threat of imprisonment, my argument is not limited to regulations of that type.
Second, one can support the harm principle and still be a legal moralist if one believes that the category of harmless immoralities is a null set. In other words, if you believe no act is immoral unless it harms others (without their consent), then for you there is no space between the harm principle and legal moralism—they are perfectly coextensive. But the position that there are no harmless immoralities, and that the only immoral acts are those that harm others (without their consent), is a difficult position to defend.Footnote 10 Nor is it one that Feinberg himself defends.
To make the case for the existence of harmless immoralities, it is useful to have a glimpse of some of the act-types that arguably fall into that category. At the outset, I want to consider some practices that Feinberg argues fall within the harm principle and are not instances of legal moralism.
Consider, first, retributive punishment—punishment based on moral desert rather than deterrence. Feinberg argues that so long as the act punished falls within the harm principle, retributive punishment falls within the harm principle.Footnote 11 However, particularly if punishment less than that which retributivism endorses would be sufficient for deterrence, inflicting the additional punishment on the grounds of moral desert might look like legal moralism.Footnote 12
Or consider punishment for acts that attempt to harm or unduly risk harm but do not actually cause harm. Again, Feinberg sees no problem with their punishment.Footnote 13 After all, they are crimes because acts of those types do cause harm. Indeed, the actor has complete control over only the attempt or the risky act, not its outcome. And it seems entirely legitimate to punish such acts, and indeed, to punish them retributively.Footnote 14 Still, such acts, when they turn out not to cause harm, are literally harmless immoralities.
Then there are the omissions of bad samaritanism, where one refuses to aid another in peril. At least in cases of easy rescue, we deem these omissions to be immoral. However, such omissions are failures to benefit, not harmings. Feinberg argues to the contrary, but unconvincingly, in support of criminalizing such omissions.Footnote 15
What kinds of acts would Feinberg himself place in the category of harmless immoralities? First, there is Derek Parfit's example of deliberately or knowingly conceiving a disabled child.Footnote 16 The child is not harmed by such an act if its life, even in a disabled condition, is on balance one worth living. For it owes its very existence to the act in question. Still, many (most?) would regard such an act as immoral.Footnote 17
Third, there are various categories of acts that do not harm but are considered wrong because unfair. These include exploitative acts, blackmail, insider trading, and various forms of discrimination. The victim may actually benefit from such acts relative to what he or she is otherwise entitled to. Yet many (most?) would say that he or she has nonetheless been wronged.Footnote 18
Fourth, there is the omnibus category of degrading and vicious acts. Sex with animals, corpse eating, consensual killings (say, for cannibalism),Footnote 19 self-mutilation, consensual gladiatorial contests, drug use, prostitution, and perhaps much of what one may see today on confessional and reality television fall into the category. Various nonstandard sex acts and homosexual, polygamous, and polyandrous sex acts and relationships used to be among the principal examples of this category, but belief in their immorality is waning in the United States.
Now, many legal moralists will quarrel with the notion that these immoralities are really harmless. First, they might argue that many of these acts will inculcate vicious character traits or undermine virtuous ones and that in so doing they will eventually lead to murders, assaults, rapes, thefts, and so on. Indeed, Feinberg himself seems to think that such a linkage, if shown, would bring the acts within the scope of the harm principle.Footnote 20 He ultimately expresses some doubt that the criminal law can be an effective instrument for inculcating character traits.Footnote 21 But if this linkage between harmless immoralities and harms brings the former within the scope of the harm principle, the rejection of legal moralism will turn on the empirical question of whether tolerating harmless immoralities does or does not lead to an increase in harmful acts.Footnote 22
Another harm that legal moralists will assert, but one that Feinberg rejects,Footnote 23 is that of living in a community where one feels alienated from one's neighbors, and where one fears that one's attempts to inculcate excellences of character and ambition in one's children will be undermined by the prevalence of bad examples. Community spirit and civic-mindedness depend in large part on the ability to identify with one's community. And that is made difficult if one's neighbors enjoy watching real fights to the death or having sex with animals. As for one's children's moral education, there is no doubt that a prevalence of bad examples increases the difficulty of achieving success.
In this piece I put to the side the very persuasive arguments by legal moralists that immoralities are inevitably harmful because they undermine the moral character of citizens and thus the “moral ecology” of the community.Footnote 24 Liberals like Feinberg tend to reject the idea that we have any right to insist that others keep their moral character in good repair or that we have any right to live in a community where certain moral norms are observed other than those protecting us from more tangible harms. This line of argument between legal moralists and liberals tends to end in stalemate.
Instead, I wish to switch the focus from the regulation of harmless immoralities to the regulation of conduct affecting the nonmoral environment. In particular, I wish to focus on the regulation of conduct for purely aesthetic reasons—that is, for reasons that the conduct is regarded as an aesthetic offense.
A lot of environmental regulation today is premised on preventing harms to health (clean air and water), preventing climatic harms or harms to agriculture (deforestation), or preventing loss of recreational enjoyment (national parks). But some environmental regulation cannot be fitted within these categories. Such regulation is designed to maintain the environment in its natural state because that is thought to be an intrinsic good, or an instance of an intrinsic good such as beauty.
I focus below on this last example: regulation to preserve the environment solely because it is beautiful, because it is natural, or because it is of cultural significance. Many—perhaps most—modern liberals who regard themselves as heirs to Mill also regard such regulation as legitimate. The question I explore here is whether such regulation differs in any significant way from legal moralism.
II. PLASTIC TREES AND OTHER ABOMINATIONS
Early in his scholarly career, Laurence Tribe published a provocative article critical of attempts to justify environmental regulation solely on the cost-benefit grounds favored by economists.Footnote 25 Tribe began the article with an example that inspired his article's title, namely, a proposal by Los Angeles to place plastic rather than real trees along some thoroughfares. The plastic trees would look to motorists like natural ones and would be cheaper to maintain. Tribe thought that such a proposal would be difficult to object to on standard cost-benefit terms, which demonstrated the inadequacy of cost-benefit analysis when applied to the environment. After all, the Los Angeles idea could be extended to plastic forests and other man-made replacements for natural items. (Think of the Disneyland version of the Grand Canyon substituting for the real one.)
Now, I like my environment as natural as anyone else does, so I share the early Tribe's revulsion at the plastic trees proposal. But the question I wish to explore here is whether liberalism, with its harm principle, permits Tribe and me to transform our private preferences into public policy.
Scenario One: Is Aesthetic Harm a “Harm”?
Scenario One: Ed owns a large expanse of land on a hillside overlooking Our Town. The land is currently covered in old-growth forest. The citizens enjoy their (to them) beautiful view of Ed's hillside. Ed, however, would like to harvest the trees and sell them as lumber, and he has so informed the townspeople. In response, they hurriedly pass an ordinance requiring Ed to leave his land in its natural state. (Assume the town has jurisdiction over Ed's property, and assume also that the ordinance raises no constitutional issues as a taking of property, an upset of vested rights, a bill of attainder, or anything else.)
In Scenario One, the citizens of Our Town contemplate the prospect of viewing a logged, barren hillside instead of the beautiful, forested one they currently enjoy. They will undoubtedly suffer a loss of pleasure if Ed goes through with his plan. But will they have been “harmed” in the sense that liberalism demands as a predicate for restricting Ed's liberty?
Feinberg, in his seminal Harm to Others, defines harm in the necessary sense as a wrongful setback of interests.Footnote 26 Let us put aside the “wrongful” part of that definition and ask if the loss of the pleasure of beautiful scenes is a setback of interests.
Feinberg is aware that too expansive a definition of setbacks of interests would render liberalism empty. The interests that Feinberg believes are legitimately protected by the criminal law are what he labels “welfare interests,” interests that are necessary means to one's ultimate goals, whatever those turn out to be.Footnote 27 He lists, for example, continuance of one's life, physical health and vigor, normal bodily functioning, the absence of absorbing pain and grotesque disfigurement, minimal intellectual acuity, emotional stability, some financial security, a certain amount of freedom from coercion, and a tolerable social and physical environment.Footnote 28 He does not specifically list a beautiful environment as a welfare interest, and there is no evidence that he meant to include it within the notion of a “tolerable” physical environment. When he does discuss environmental harms, it is the threat to health from pollutants on which he focuses.
Still, most people do prefer living in an aesthetically pleasing environment, although they have somewhat different conceptions of beauty and beautiful environments. But Feinberg distinguishes interests from “wants”—preferences. And he also distinguishes interests from things one finds unpleasant. These include unpleasant sensations, transitory disappointments, shocked sensibility, alarm, disgust, frustration, boredom, irritation, embarrassment, minor pains and discomforts, and the like.Footnote 29 Surely he would have classified the Our Town citizens' objection to Ed's cutting down his trees in Scenario One as falling within the domain of “wants” or “unpleasantries” rather than that of “interests” protectable under the harm principle.
Perhaps, however, Feinberg was mistaken. Consider the following argument that Our Town might make in support of prohibiting Ed from cutting down his trees. If Ed renders the physical backdrop of Our Town less beautiful, Our Town will be a less desirable place to live. And if that is the case, property values in Our Town will decline. And surely a decline in wealth is a setback to interests. For if someone stole an equivalent amount of wealth from the citizens of Our Town, that would count as a wrongful harming that is legitimately punishable as a crime in a liberal state. And something cannot be wrongful harming unless it is first a harming.
Now this is a cogent argument, I believe, but it is ultimately an unsuccessful one if a distinction between aesthetic regulation and legal moralism is to be maintained. For one thing, the liberal should be suspicious of relying on the decline-in-wealth argument in this context. Suppose, for example, that the citizens of Our Town and those who might move to Our Town and purchase their property were prejudiced against some group. And suppose they passed an ordinance forbidding that group from living in Our Town. They might argue that the ordinance is justified not by their prejudice but by their concern for their property values. But would protection of property values be a legitimate ground for limiting liberty if the threat to property values stemmed from prejudice? The Supreme Court has at times suggested that such a law would violate the U.S. Constitution,Footnote 30 and the usual liberal intuition regarding such laws is in accord. Of course, if the origins of many of our quotidian preferences and the property values that reflect them were closely examined, one suspects one would find various biases, legal moralisms, and the like, even if the preferences on their face appear unrelated to biases and moralisms. (Does a preference for jazz reflect an identification with the plight of American blacks? Does a preference for earth-toned colors reflect a romanticization of Native Americans? Does a preference for Amish furniture reflect a subconscious endorsement of a norm that deems a simple life more morally virtuous than the urbane?)Footnote 31 Still, the liberal should be skeptical of any argument that translates preferences that cannot themselves justify restrictions on liberty into property values that are then supposed to justify those restrictions.
Even if the argument based on property values is not illegitimate, it is an argument that proves too much. For the question I am interested in answering is whether aesthetic legislation can be distinguished from legislation predicated on legal moralism—the proscription of “harmless immoralities”—which the liberal claims is an illegitimate form of state coercion. Consider this scenario:
Scenario Two: Ed and some friends have organized a series of paid gladiatorial contests to take place on Ed's property. The gladiators, after a rigorous examination of the quality of their consent, will fight each other in the manner of Roman gladiators. The losers will likely be severely maimed, and some may very well die, but they will be well compensated. In addition to these gladiatorial contests, Ed also plans to host “sex with animals” days and corpse-cooking and -eating picnics (the latter with the prior consent of the deceased and their families, and the former without causing the animals harm). Ed plans to place large signs on his property advertising these events, which signs can also be observed from the adjacent road. Our Town citizens, believing the advertised activities to be immoral and disgusting, pass an ordinance forbidding them.
Notice that the citizens of Our Town can support the legitimacy of these prohibitions with the following argument: “Our underlying objections to these activities are moral. But those moral objections can be translated into a Feinbergian ‘harm.’ For most of us find it less desirable to live in a place that advertises and from which can be observed immoral gladiatorial contests, sex with animals, and corpse cooking and eating; and that decline in desirability will translate into a decline in property values and thereby a decline in our wealth. And acts that cause us to lose wealth are clearly acts that harm us.” In other words, the kind of argument the citizens can make in support of aesthetic regulation they can make in support of morals legislation.
If a decline in wealth cannot distinguish aesthetic “harms” from the “harms” of observing “harmless immoralities,” perhaps the liberal who wishes to support prohibitions on the former should support prohibitions on the latter. Arguably, this is the very move that Feinberg himself made when he argued that liberalism was consistent with the criminalization of some offensive conduct. However, as I argued elsewhere, this is a move that lets the camel's nose—and a good deal more of the camel's anatomy—of legal moralism into the tent.Footnote 32 Most of the types of conduct the observation of which would cause offense do so precisely because those types of conduct are immoral or are believed to be so.Footnote 33 For consider the conduct observed on Ed's property. The moral norms involved are not moral norms against causing offense by being observed engaging in the conduct. Gladiatorial contests, sex with animals, and corpse eating are not wrong, if they are so, because they cause offense when observed. Rather, they cause offense when observed because they are or are believed to be wrong.Footnote 34
Thus, once he legitimates the criminalization of offensive conduct, the liberal may have given the game away to his archrival, the legal moralist.Footnote 35 The argument for criminalizing observed offensive conduct is not precisely the same as a straightforward legal-moralist one. The latter would authorize criminalizing observed immoralities because they are immoralities, whereas the former would authorize criminalizing observed immoralities because observing such immoralities offends.Footnote 36 But the distance between these two positions is vanishingly small.
The liberal who wishes to criminalize conduct that causes aesthetic harm thus faces a dilemma. He or she can make a case for his or her position only by making a case for criminalizing observed immoralities—immoralities that cause no harm other than offense.
Of course, as stated above, Feinberg does endorse the criminalization of harmless immoralities when they amount to nuisances. And for Feinberg, to be nuisances they must be perceived.Footnote 37 Moreover, to be criminalized, such nuisances must pass a balancing test that requires, among other things, that the offense they cause be intense, more than transitory in duration, widespread, and not easily avoidable.Footnote 38
It is not clear whether aesthetic harms of the type in question pass Feinberg's test for prohibitable nuisances. The offense may not be intense or durable and it may be easily avoidable. A deforested hillside that is observable from a town is itself durable, but no one is forced to observe it for extended periods of time. It contrasts markedly with the conduct one might be exposed to on Feinberg's ride on a busFootnote 39—conduct from which it is almost beyond normal human powers to avert one's attention and which will expectedly provoke revulsion and not mere dislike. Ugliness, whether it be a deforested hillside, atrocious architecture, seedy strip malls, or unkempt and slovenly people, does not usually engender such intense displeasure as to interfere materially with one's normal activities.
Still, there may be no clear line between the reactions that legitimately mark a prohibitable nuisance and other displeasures, so let us suppose, therefore, that Ed's deforestation of his hillside in Scenario One does amount to a prohibitable nuisance on Feinberg's account. That brings us to Scenario Three.
Scenario Three: Can One Be Harmed by What One Cannot Perceive?
Scenario Three: Same as Scenario One (the proposed ordinance against Ed's cutting down the trees on his hillside), except that Ed, objecting to the proposed ordinance, says that after he cuts down the trees, he will put plastic trees on the hillside that will be so realistic that the townspeople's view will look exactly as it did before the trees were cut down. The townspeople nonetheless pass the ordinance.
Immoralities do not need to be observed in order to cause profound offense. That offense can be caused by mere knowledge that the immoral conduct is occurring or has occurred, knowledge that can be obtained other than through direct perception.Footnote 40 Although there are many norms regarding conduct that distinguish between the conduct's occurring “in public” (where it is likely to be observed by those who wish not to observe it) and in private—think about nudity, sex, urination, and defecation—there are other norms that make no such distinction and apply in all contexts.Footnote 41 The acts occurring on Ed's property in Scenario Two, for example, are acts that would be deemed immoral by those who believe they are immoral no matter where those acts occur. Direct perception is one way one can learn that those acts are occurring, but it is not the only way. Obviously, if someone is going to be prosecuted for such acts, their occurrence would have to be discovered. And constitutional and other legal protections of privacy would have to be observed. Once, however, the acts are discovered, it is no denial of their immorality that they occurred “in private.” Nor is their private occurrence any bar to their causing profound offense once they are discovered.Footnote 42 If the acts on Ed's property all occur behind closed doors with only willing participants and observers, a sign advertising them would likely cause profound offense not because the sign is offensive, but because the conduct the sign discloses is immoral and thus offensive.Footnote 43
To see this and to carry it over to environmental-protection legislation, consider Scenario Three, where Ed puts up a realistic plastic forest on his hillside. No Our Town citizen will be able to perceive the difference between the original beautiful natural backdrop and the proposed artificial one. But they will know that what they are perceiving is not a real forest but an artificial one, and this may cause them profound offense and cause them to value the view of the hillside much less than before, with a resultant decline in property values and so on.Footnote 44 The offense would likely be caused because Our Town citizens accept a norm that the natural environment should not be transformed into an artificial one except for certain purposes—for homes, offices, businesses, and roads—and that one of those purposes is not that of visual effect.
At bottom then, if the Our Town law in Scenario Three is a legitimate restriction on Ed's liberty, it must be because legal moralism is legitimate, at least where knowledge of the “harmless” immoralities causes offense. We have already seen that if the Our Town law in Scenario One is legitimate either under the harm principle (because of the effect on property values) or in terms of a nuisance, the camel's nose of legal moralism is well into the tent. Effects on property values, if counted as a harm, can come from either the perception or the knowledge of harmless immoralities (Scenario Two). And nuisances in Feinberg's sense are most often, though not always, caused by perceiving such harmless immoralities. If Ed's deforestation is a nuisance solely because of its aesthetic effect, it is not a moralized nuisance, but prohibiting it may not be intense enough to survive Feinberg's balancing test. On the other hand, if it is a nuisance because it violates a norm regarding the treatment of beautiful things, then it may be intense enough to prohibit, but clearly based on a legal-moralist premises. And in Scenario Three, there is nothing but legal moralism on which to predicate a prohibition.Footnote 45
Aesthetic Regulation as Legal Moralism
To this point I am establishing that aesthetic regulation that is legitimated by preventing offense can do so only if one accepts a legal-moralist premise. For the offense in question is offense caused by knowledge of a norm violation, a norm violation that is not a harm in the Mill/Feinberg sense. Nor is the norm in question a norm regarding the causing of offense. It is, rather, a norm that has nothing to do with harming (in the Mill/Feinberg sense) or with offending.
In truth, however, proponents of aesthetic regulations do not ordinarily justify such regulations by reference either to harms (in the Mill/Feinberg sense) or to nuisances. Rather, they regard actions such as Ed's in Scenario One—his deforestation of a beautiful hillside—as in itself a legitimately proscribable wrong. For the proponents of aesthetic regulations, destruction of beautiful environments without strong justification is a prohibitable wrong, period. They accept as a proper basis for prohibition a norm that natural beauty should be preserved when the costs of doing so are not excessive. They are, in other words, legal moralists.
What is true of proponents of aesthetic regulations like that in Scenario One is a fortiori true of proponents of regulations like that in Scenario Three. Ed's plastic trees will be visually indistinguishable from real trees and thus will be every bit as “beautiful” in the visual sense.Footnote 46
If preserving beauty is a legitimately enforceable norm that justifies restricting Ed's freedom, is preserving “naturalness” also a legitimately enforceable norm? I suspect that proponents of aesthetic regulations accept such a norm and believe that it is legitimately enforceable. In short, they are legal moralists regarding this norm as well. In that regard, consider the following scenarios:
Scenario Four: The forest on Ed's hillside is the last redoubt of the speckled pine fly. There is no known ecological importance of the speckled pine fly, nor does it have any known uses for humanity. Some speckled pine flies have been preserved in laboratories, but they seem to be on the brink of extinction in the wild due to natural evolutionary forces, which have relegated them to a last stand on Ed's hillside. If Ed cuts down his trees, the speckled pine fly will disappear in the wild. For that reason, the government seeks to enjoin Ed from deforesting his hillside under the Endangered Species Act.
Scenario Five: Again, Ed wants to chop down the trees on his hillside. Some of the trees have markings on them that were presumably made by the ancestors of a local tribe of Native Americans. The markings have been photographed, dated, and analyzed. But the tribe wants them preserved on the standing trees as part of its cultural heritage. An antiquities preservation statute is invoked to enjoin Ed from cutting down the trees with the markings.
Scenario Six: Ed owns a mining company that sends robotic mining devices to the moon. The activity of these devices on the moon has left gaping holes and litter on the moon's surface. No one on Earth can actually see this, but the mere thought of such “despoiling” of the moon's surface causes dismay among many citizens. They successfully lobby Congress to pass a bill requiring Ed to restore the moon's surface to its pre-mining state and to forbid any further robotic mining.
None of these laws will pass muster under Feinberg's harm principle, nor are they aimed at perceptual nuisances. They are all enforcements of norms regarding naturalness, preservation, and the like that can be conceptualized only as legal moralisms. Yet most present-day liberals would think them proper exercises of the state's coercive power.
Of course, my arguments accept Feinberg's account of harm and his harm principle. There are other accounts of harm that are more capacious than Feinberg's and might count, say, substitution of plastic trees for real trees as a harm irrespective of its being perceived or even known, much as one might claim that cheating by one's spouse is harmful even if never discovered or that being hooked up to Robert Nozick's “experience machine” is harmful.Footnote 47
Nevertheless, expanding the harm principle to cover my examples rescues the liberals who support these aesthetic regulations from the charge of legal moralism at the price of trivializing the harm principle. This victory over legal moralism is a Pyrrhic one.
In the end, liberals' rejection of legal moralism is highly selective. Just as Feinberg makes exceptions to the harm principle for nuisances and for gladiatorial contests, most proponents of Millian liberalism make exceptions for norms about beauty, naturalness, historical interest, and cultural significance.Footnote 48 Deep down, I suspect, we are all legal moralists.
