Enforcing Morality

In Enforcing Morality, Steven Wall revisits fundamental and important normative questions about the relations between law and morality, about the proper limits of law, and in particular about whether it’s a legitimate aim for a state to try and make its subjects more virtuous and their lives go better, or whether the mere immorality of an action suffices as a reason for criminalization, or perhaps for some lesser kind of legal intervention and regulation (Wall is explicit that his discussion is not restricted to just criminalization [2]).The book is divided into two parts. In the first, Wall revisits familiar themes and contributions here, mostly discussing Mill’s Harm Principle (and alternatives to it in terms of sovereignty) and the Hart-Devlin debate. In the second part, Wall defends his own set of answers to these central questions: he rejects the Harm Principle (however exactly understood), he argues that creating the kind of ethical environment in which virtue and well-being can prosper is very much a part of the state’s (and the law’s) business, and he defends “Critical Legal Moralism,” the view according to which the mere (real, true, critical) immorality of an action suffices as a reason for legal action.The relation between the two parts is not entirely clear to me—surely, the original discussion in part 2 does not need the part 1 setup in order to be of value. Perhaps a part of the reason is that Enforcing Morality is a part of the Cambridge Introductions to Philosophy and Law series, officially aimed at “students in philosophy, law, and political science.” As such, I found part 1 very well done and will undoubtedly refer to it in my own teaching.1 It’s less clear to me to what extent, though, the more original and intricate discussions in part 2 are ideal for students—despite them being excellently written. Part 2, in other words, reads more like original papers one would engage in one’s research than like an introduction aimed at students.But perhaps none of this matters very much. In what follows, I briefly survey the main themes in the book, and raise some initial critical points.Chapter 2 is a discussion—at times, rather close to Mill’s text—of the Harm Principle. I found the presentation of the Harm Principle and the arguments for it (in terms of experimentation in ways of living, and in terms of autonomy) very helpful. But from such a detailed discussion of the Harm Principle, I would have expected to see more by way of common critiques thereof. For instance, Wall notes that Mill limits his discussion to direct harm, and he follows suit (30). But it’s not clear what the rationale for such a restriction could be consistently with the Harm Principle and its underlying motivations. (Perhaps the emphasis on an indirect consequentialist justification of the Harm Principle is supposed to help here?) And while the thought that the value of autonomy and experiments in living require some private realm seems very plausible, it is not at all clear—and nothing is offered by way of argument here, either in Mill or in Wall—why the best understanding of this needed private realm is in terms of harm, rather than others. None of this poses a serious problem for Wall’s main line in the book, for, after all, he proceeds to reject the Harm Principle. I highlight these points here just in order to note that the discussion of the Harm Principle is not (and perhaps doesn’t attempt to be) comprehensive in these ways.In chapter 3, Wall surveys the famous Hart-Devlin debate, showing how some points from Patrick Devlin (also revisited in later chapters) can be saved. Not much is original, it seems to me, in this discussion—but I found it very well done and refreshingly open-minded about some of Devlin’s points (even, for instance, his use of the treason analogy). Wall also ties this discussion to wider issues in political philosophy and indeed in democratic theory—such as the distinction between a trustee and a delegate view of political representation (53–57).Chapter 4 (“Sovereignty and Consent”) is mostly about sovereignty—an attempt, perhaps especially by Arthur Ripstein, to offer a sovereignty-based alternative to Mill’s Harm Principle. Here Wall discusses also the relations between the relevant conceptions of sovereignty and harm, and suggests that the two are interrelated (so that none enjoys clear priority over the other). This chapter is also, as its title suggests, about consent, rendered relevant by the Volenti Maxim (Volenti non fit injuria). The discussion of consent, though, seems to me too initial to be very helpful here. For instance, the discussion doesn’t include such features of consent from the recent literature as its arguably being a scalar concept, and perhaps a contrastive one as well; and Wall—while he does discuss an unenforceable duty (perhaps of self-respect) not to consent to some things (like slavery)—nowhere discusses the limits of the normative power of consent, the thought that some things we cannot validly consent to (and the related notion of inalienable rights, which would have been especially relevant in the discussion of the German cannibalism case [108]).Ethical Environmentalism is roughly the thought that the ways in which legal systems affect “the features ... of our surrounding that have moral significance” (89) are legitimate reasons for legislation. And the central claim of chapter 5 “is that this project [ethical environmentalism], when undertaken successfully, can serve the common good of a society, and is, for that reason, presumptively justified” (104). Central to Wall’s argument here (and elsewhere in the book) is “the integration thesis”—the thought that judgments in ethics (the art of living well) and in the more narrow morality (perhaps of what we owe to each other) are intertwined in ways that make separating them impossible. “In short, fairness and ethics are fused” (113). This is also the context in which Wall starts his discussion of a neutrality principle applied to the state (102). Wall accepts here an objective conception of well-being and restricts such neutrality requirements to neutrality just among valuable options and ways of life. (I’m not sure such a restriction is consistent with the underlying motivations of neutralists, so perhaps this is better understood as rejecting neutralism altogether.)Chapter 6 is an argument for the integration thesis, focusing (following Richard Arneson) on the observation that a prohibition on paternalism has problematic distributive consequences: because paternalism tends to benefit more the imprudent, and because the imprudents’ lives tend to be going less well, a prohibition on paternalism benefits the better off at the expense of the worse off. And Wall claims (116–17) that the kind of paternalism that may be justified by this fairness argument will not be offensive, as it is not primarily about the paternalized and their shortcomings but rather about the impersonal good of equality. This discussion of paternalism is both insightful and plausible, but I’m not sure it is ultimately convincing: at the end of the day, if we end up restricting someone’s liberty for their own good, it will be hard to insist even that they ought not to be offended, let alone that they are unlikely to. Furthermore, in the sense in which our policy regarding paternalism may have distributive implications, arguably any policy may (including, for instance, the policy regarding freedom of expression, a point Wall doesn’t mention in chapter 9). This raises the suspicion that the distributive effects of our paternalism policy do not suffice to do the heavy lifting Wall wants them to do here.Let me be quicker on the last four chapters. Chapter 7 is a discussion of liberty and autonomy. Wall accepts their value but rejects the thought that there’s a general presumption in favor of liberty (this is helpfully summarized on page 148). Chapter 8 is a helpful discussion of a right to do wrong. Chapter 9 is a rather focused discussion of freedom of expression, discussing two arguments for such freedom—the common good argument and the legitimacy argument (according to which free speech is a necessary condition for state legitimacy). Here, Wall is being much more careful than Mill about not relying blindly on empirical speculations from the armchair, though it is unclear to me why—given how clearly debunk some of Mill’s claims here are (e.g., “All silencing of discussion is assumption of infallibility,” quoted on page 182 and proclaimed by Wall to be an exaggeration)—Wall still thinks that a detailed discussion of Mill’s relevant texts is called for here. And continuing with the theme of being appropriately careful on empirical realities, chapter 10 is a discussion of some pragmatic consideration that may make morality-enforcement, in many circumstances, ill advised (even if the principled considerations against it by and large fail). Perhaps most interestingly in this context, Wall argues that some of these pragmatic difficulties are not entirely contingent, they are “robust across social contexts” (204). (The discussion in this chapter would have benefited from direct and explicit engagement with the recent literature on ideal and nonideal theory.)This is an excellent book, with both introductory value (mostly in the first part) and original scholarly value (mostly the second). It is also a short book: I’m sure that Wall has a lot more to say about these and related issues. Let me conclude, then, with two issues that seem to me problematic in the current, condensed version of the argument.As noted above, Wall claims—at a crucial stage in the argument justifying enforcing morality—that the ethical environment can be a part of the common good. Wall thus needs a conception of the common good, and here’s how he summarizes it: “The common good consists of a set of common properties that affect all the members of the society. These properties are ethically significant, ... valuable and beneficial, though not necessarily on balance, to all members of the society” (101–2). Notice the “on balance” here: Wall does not require, for something to be a part of the common good, that it benefits everyone all-things-considered. Insisting on this would arguably make it the case that nothing (or anyway nothing interesting) is in the common good. But this raises a problem here: I can see why the distinction between things that benefit everyone all-things-considered and things that don’t is a normatively significant distinction, in political philosophy and everywhere else, for this is a distinction between nonconflictual and conflictual cases. But why think that the distinction between things that pro tanto benefit everyone and things that don’t matters morally and politically? After all, cases in which something benefits everyone pro tanto may still be conflictual (because it doesn’t benefit everyone all-things-considered). Wall has things to say about such cases—he believes that a relational good of fairness is a constitutive part of the common good, so that such a conflict is consistent with the common good only if those (all-things-considered) harmed bear their burden fairly. But the worry remains: by modifying his account of the common good to achieve extensional adequacy, by restricting it to pro tanto goodness, Wall renders the common good normatively insignificant.Finally, and in line with the empirical worries that are robust across social contexts (in chapter 10): let’s grant Wall everything he says in terms of principled arguments. So we believe in a permission to enforce (critical, true) morality. But we also know that the way such a permission will typically play out is by enforcing social morality. And this is worrying. This does not, of course, challenge Wall’s principled arguments (for he will rightly insist that what he justifies is only the enforcement of critical morality, not, when they diverge, of social morality, and, as he insists following Gerry Cohen, we want to know what to think, not just what to do [201]). But perhaps what this means is that whether Wall should shout his conclusion from the rooftops may depend on how close social morality (in a given society) is to critical morality. Perhaps, then, if the relevant society is sufficiently bad, the more Millian position can still survive as a reasonable pragmatic compromise. Whether this description holds of our societies today is a matter for another occasion

Analytic philosophy · Contemporary philosophy · Epistemology · Morality · Legal Education and Practice Innovations · Philosophy