Sunday, March 2, 2014

A dialogue for the dance: on the enforcement of moraltiy

I overheard this exchange outside my office last week.


Ned: Yeah, but you can’t legally enforce morality and it’s a big mistake to try.

Enzo: I disagree. Obviously, it could be a mistake to try to enforce certain moral rules. Enforcement is costly and sometimes ineffective. I even agree that sometimes trying to enforce morality with the law creates problems even greater than the immorality the rules are targeting. So, for pragmatic reasons, I can see that it could be a mistake to use the law to enforce certain moral rules. But surely, Ned, the state should enforce the “no murder” rule.

Ned: Well, duh. Murder, though, violates Mill’s harm principle. Governments don’t enforce it because murder is wrong. They enforce that rule because murder causes harm.

Enzo: Wait a minute. Murder IS wrong, isn’t it?

Ned: Sure.

Enzo: Causing people harm is wrong, right?

Ned: Yes.

Enzo: So…

Ned: Oh! I see. Sure, if you want to think of it that way, then fine: Mill’s view would be that moral rules that protect people from harm are legitimately enforced. But that’s it. Apart from pragmatic reasons, there are principled reasons not to enforce other parts of morality. It would be illegitimate for the state to express blame or impose punishments against people who violate certain moral rules.

Enzo: What are those principled reasons? Because, a moral rule just is a claim or directive for which there are such strong reasons to act a certain way that it is legitimate to express blame or impose punishment against people who don’t comply. We can hold people accountable to moral claims and directives.

Ned: Yeah, but not every claim or directive counts as moral in that sense. The claim has to be verified from the point of view of some principle – a “critical” principle that determines that the claim has the sort of standing necessary for it to be legitimately imposed on everyone in the society.

Enzo: What, like utilitarianism?

Ned: Well maybe. I guess that’s Mill’s view and Hart defends it in his debate with Devlin.[1] But many deny that utilitarianism is the right critical principle. Maybe it isn’t appropriate to hold people accountable to claims and directives that can be justified in terms of utilitarianism. Many people take themselves to have decisive reasons to reject utilitarian requirements. And it seems impermissibly sectarian to hold people accountable to claims that they can’t see the point of or that are incompatible with their own beliefs, values and commitments. Imposing utilitarianism on everyone in a society might be just as bad in this sense as imposing Christianity on everyone in a society.

Enzo: So what’s the principle?

Ned: Public reason liberals, like John Rawls and Charles Larmore have proposed a kind of public justification principle. The idea is to eschew sectarianism by requiring that everyone have reasons of their own for endorsing a coercive rule. It’s a test to determine whether the rule has the necessary “public” character for the state to legitimately coerce everyone’s compliance.

Enzo: You mean everyone has to agree? That’s crazy. It would mean we could legitimately enforce exactly zero rules.

Ned: No, the principle isn’t that demanding. First, it just requires that everyone have reason to endorse it, not that they all actually do, consciously and explicitly endorse it. So it could be that all have reason to endorse a coercive policy, but for one reason or another, not all of them see that they do. The mere fact that they don’t see it doesn’t make the rule illegitimate.

Enzo: Oh. But doesn’t anyone who does explicitly disagree with a rule have reason to reject its legitimacy? Say a proposed rule isn’t strictly incompatible with someone’s beliefs, values, commitments and the like, but her values dictate a different rule.

Ned: No. Generally, the fact that a rule doesn’t live up to her vision of ‘the Good’ isn’t sufficient to show that she has reason to reject it as unjust. We’re looking for a test of legitimacy – rules that you have sufficient reason to endorse – and requiring that they precisely match your personal ideals seems extravagant. In fact, very often the fact that many other people you have to interact with are observing a rule will be reason enough for you to observe it, too, even if you would prefer a different rule.

Enzo: So you’re saying that, according to this public justification principle, to determine whether a claim or directive is legitimately enforced, we must adopt the point of view of the public, rather than the point of view of our own personal ideals or some other sectarian doctrine.

Ned: Bingo! It’s in that sense that the legal enforcement of morality is wrong-headed. “Moral” rules that don’t pass that test aren’t legitimately enforced.

Enzo: Huh. But I…


That’s all I heard. Enzo still seemed to want to defend the Enforcement thesis.  I found myself persuaded by Ned’s Non-enforcement thesis. What about you?

Kyle Swan
Department of Philosophy
Sacramento State University

[1] H.L.A. Hart, Law, Liberty and Morality (1963).


  1. Kyle, I found myself being persuaded by Ned, too, but I'm not sure I completely understand him. I don't really understand what it means to adopt the point of view of the public, or why anything like that would follow from what said Ned. I understand why to determine whether you have reasons for adopting a principle you might want to make considerations of a public nature, such as whether it is already widely accepted, but that seems to me to be perfectly comprehensible from my point of view Also, I'm wondering, if acknowledging this sort of consideration as legitimate is something that's really a good move for Ned. It seems awfully close to acknowledging the legitimacy of the consideration that people will kill me or run me out on a rail if I were to object to being coerced in this way.

    1. I think Ned must have been thinking of public reason as roughly synonymous with non-sectarian reason as roughly synonymous with neutrality. So it's not just widespread acceptance (though I think that comes in later in justifying specific interpretations of rules). He seems to understand it in such a way that the requirement prevents people from being held accountable (legally in these cases) to rules that don't make normative sense from their point of view. Since we're talking about justifying the rule, it's important that it make normative sense and not merely pragmatic sense in the way in makes sense to hand over one's wallet to someone demanding it with a gun.

    2. That makes sense. I'm not sure I can see the fact that many people you have to get along with are observing the rule as having more than pragmatic significance. Unless, I guess, we are allowing that they have some kind of expert knowledge that we lack.

    3. Well, we have strong reason to coordinate with others. But, thankfully, for most given (mostly broad, abstract) moral principles, there will be a range of specific articulations (or interpretations) of them that will be acceptable given our 1st-person beliefs, values and commitments. Any of them within that range are acceptable (by definition or stipulation) and so again, yes, given my reasons to coordinate with others, I'll have reason to act according to the one that everyone else is observing, even if it isn't the articulation or interpretation I think is best. But matters are different if I can't endorse any of them. If that's true, and you impose the rule anyway, one I don't have sufficient reason to accept, then that's just to push me around. It's not justified to me and so an illegitimate use of force.

    4. That's interesting. I might have learned something.

    5. If I see that Ned kid, I'll let him know!

  2. Kyle, clearly the quality of hallway banter has stepped up lately! I'm still a bit unsure of why it is that Ned claims that legal enforcement of morality is wrong-headed. Maybe it's the cloudy grey and damp weather today, but I think I'm missing something. The public reason legitimacy test isn't really about identifying which moral rules ought to be laws, but which moral concepts and principles ought to be used to structure a just society -- understood as just by everyone, even though they might not agree with the particular principle or conception at issue.... it's sufficient that they have reason to adopt it or accept it. But anyway, whether we're talking about laws or something else, why would everyone's having reason to adopt it be a reason not to enforce it legally? Is there an assumption that they would already thereby bring themselves into conformity with it so enforcement would be redundant? I'm wondering if Ned's concern isn't so much with Enzo's claim that morality ought not to be enforce via law, but with the public reason legitimacy test. He references Hart arguing against Devlin, but it might (if memory serves) look an awful lot like Devlin's proposal would have passed the public reason test. Hart's rebuttal from an enlightened moral point of view (he wasn't necessarily endorsing utilitarianism, more drawing on a principle which corresponds to a general commitment among the public that minimizing harm is a good thing) was hugely controversial in exactly the way that he was drawing out the policy implications regarding homosexuality and prostitution. what the public has reason to endorse, unless we're talking about an idealized public, might be exactly what is not morally justifiable from a critical perspective.

    1. Ned must think the test has broader application than just for basic structure institutions. There are some public reason liberals who present it that way, but you're right that most don't.

      About the other point -- Enzo got Ned to concede fairly early on that he's ok with enforcing morality as long as we clarify that it must be appropriately justified (in the way Ned suggests). The debate about the legal enforcement of morality is muddled by confusing two different notions of morality. One is that of a rule that a deliverance of some moral theory or point of view or other. The other is that of a rule that's appropriately justified in the sense that, as Enzo said, "there are such strong reasons to act a certain way that it is legitimate to express blame or impose punishment against people who don’t comply". Not every "moral" rule counts as moral in that sense. For rules to count as moral in that sense, they have to be verified from the requisite point of view.

      I don't agree that Devlin's proposal would pass the test as Ned presents it, which, again, isn't just about basic structure institutions. Also, I think Hart was explicit in using utilitarianism as a critical principle (and took pains to distinguish his reliance on it from a way of enforcing morality) but maybe you could say more about what you had in mind.

  3. At first I thought "Ned"="Nonenforcement" and "Enzo"="Enforcement". But when I remembered how cognitive biases affect the way the mind works, I quickly realized what you were really up to, stacking the deck with "Ned" ( and "Enzo" (

    More seriously, I wonder how Ned and Ed would handle cases involving flags. You could consider a typical case of flag burning, which is sometimes outlawed in a place, not because of a “harm to others” principle, but because of an “offense to others” principle. Or consider a case where a person has a conscientious objection to saluting or pledging allegiance to a given flag, for reasons that are important to them. Or consider a case ( I read about recently where a California high school asked some students to turn their American flag T-shirts inside out for what seemed (to them) good public safety reasons. Or consider a hypothetical (as far as I know) case where a citizen objects to being taxed to support the flag-portion of the budget on the grounds that “flags are not needed to prevent harm to others, unlike a stop sign at an intersection.” On Ned’s view, does the state have any authority to coerce “flag-behavior” when that behavior (or its lack) does not “harm” others?

    What got me thinking about flags, to be honest, was thinking about how it might feel to be living in a region of the world, like Ukraine, where some people are flying one sort of flag outside your window—with all that this particular flag means at this particular moment—and other people are flying another sort of flag—with all its associated meaning.

    1. You found me out. Anyway, I tend to see the non-sectarian/public justification principle as a way of clarifying the liberal neutrality principle and both as improvements on the earlier harm principle. But Hart advocated an "offense principle" with qualifications to do justificatory work and, similarly, there's nothing that would necessarily exclude offenses from public justifications. I don't know enough about the cases you bring up to offer much comments; however, in the US we have pretty strongly publicly justified norms for accommodating conscientious beliefs and against restrictions on speech. Both are defeasible, though. I don't mean to punt on your question, but the way this works out within the view is somewhat along the lines of my second response to Randy above.