The harm principle sets a limit on the justified legal and social control of individuals. The principle also provides a widely accepted justification for such control. This chapter critically reviews John Stuart Mill’s understanding of the harm principle and the considerations he advanced in its support. It also draws on other discussions of the principle to assess its plausibility in general. Mill took the harm principle to be the sole ground for justified interference with the liberty of individuals, but less restrictive defenses of the principle are available. The content of the harm principle, on any of its formulations, is shaped by the characterization of harm that figures in it. A good characterization of harm should be both descriptively accurate and morally appealing, but these two desiderata can pull in opposing directions. This chapter argues that the characterization of harm that figures in the harm principle must advert to the grounds that justify the principle, but these grounds are multiple and can come into conflict. Mill presents both an autonomy argument and a social learning argument in support of the harm principle, but the ground of autonomy can speak in favor of interference in cases where the social learning argument speaks against it. The chapter concludes with a brief discussion of harm, speech and offense.

The right to free expression is of special importance for any discussion of the legal and social enforcement of morality. This is true for two main sets of reasons. First, the free expression and communication of ideas in a political society profoundly affects its ethical environment. The right to free expression, or more precisely the social condition that is brought about by the adequate recognition and protection of the right, is itself a public good. Second, the free expression and communication of ideas, especially ideas relevant to politics, is widely considered to be a condition of government legitimacy. Governments that wrongly deny their subjects the right to freely express their ideas forfeit a claim to rule over them. This chapter engages with both sets of reasons, which are referred to as the public good consideration and the legitimacy consideration, respectively, with an eye toward clarifying the grounds of the right to free expression and the limits to its scope. The chapter pays special attention to the issue of whether the right to free expression extends to so-called dangerous speech; that is, speech that advocates for violence against the government and/or certain targeted groups.

Personal liberty can be understood in terms of rights. Liberty includes the right to make foolish choices, including some choices that are wrongful. The rights of persons, it is sometimes argued, can be restricted legitimately only for the sake of securing the equal liberty of others. Each person has an equal right to be free. If sound, such a view would establish very substantial limits on the permissibility of legal measures to improve or protect the ethical environment of a society. This chapter examines and rejects this equal right to be free view, challenging both its cogency and determinacy. It next considers a more moderate position that holds that persons have significant rights to do wrong, and that these rights place limits on the range of legal measures that can be taken to improve the ethical environment of a society. After clarifying the general idea of a right to do wrong, the chapter examines and defends two bases for such rights; the first appeals to the value of accommodation and the second to the nested character of rights. An adequate account of ethical environmentalism, the chapter concludes, must respect these rights and the limits on legal measures that they support.

This chapter shifts the focus from principle to pragmatic concerns. It starts by considering a number of pragmatic maxims that apply to the enforcement of morality. These maxims limit the relevance of the more abstract principles discussed in this book and will suggest to some that a better approach would start first with the maxims and consider principles only when necessary. This chapter indirectly defends the principles-first approach adopted in this book by outlining what would be lost if this rival maxims-first approach were pursued. The chapter then turns to the problem of overcriminalization, to which the ethical environmentalism defended in this book may seem to be especially vulnerable. This problem points to the importance of identifying alternative enforcement methods to the criminal law, and the importance of comparative assessments of legal and social enforcement mechanisms. The chapter concludes by discussing the social fact of intractable disagreement over the content of morality in modern societies, and the limits, as well as the benefits, this fact presents to the project of ethical environmentalism.

This chapter introduces the central questions that are explored in the book. Not only do legal systems enforce morality but they ought to do so. The legitimacy of legal prohibitions on a host of moral wrongs such as murder, rape and burglary is widely taken for granted and not subject to serious dispute. Since legal systems do and ought to enforce morality, the interesting question is not whether the law should enforce morality. The interesting questions concern what parts of morality the law ought to enforce, the considerations that justify its enforcement, how the law ought to enforce morality, the relationship between the legal and social enforcement of morality and whether there are moral limits that constrain the enforcement of morality, and if so, what are the nature and justifications for these limits. In the course of introducing these questions, the chapter distinguishes different senses of enforcement, as this notion applies to both legal norms and social norms more generally. It distinguishes a broad from a narrow understanding of morality and further distinguishes critical from social conceptions of morality. The chapter concludes with a brief discussion of the relation between principled limits on the enforcement of morality and pragmatic reasons for imposing such limits.

There is no getting around the fact that we live in a social and cultural environment and there is no denying the fact that the laws of our society deeply affect its character. From the fact that law impacts the environment of those who are subject to it, it does not follow that legal officials should attempt to improve its ethical character. This chapter presents a presumptive case for why legal officials are not only permitted but also have a duty to do so. Ethical environmentalism is the political project that aims to satisfy that duty. After clarifying the notion of an ethical environment, and relating it to the aspirational ideal of the common good of a society, the chapter argues that ethical environmentalism is supported by considerations of fairness. The relation between fair treatment and neutral treatment is then explored and clarified. Ethical environmentalism presupposes a public/private distinction. The shared public world, as contrasted with the private thoughts and activities of individuals, defines its scope. With that in mind, the chapter distinguishes two forms of legal moralism, character-centered and status-centered, and discusses how each form relates to the project of ethical environmentalism.

This chapter continues the defense of ethical environmentalism by introducing the integration thesis. This thesis holds that the ethical, interpersonal and impersonally valuable dimensions of morality interlock in ways that frustrate efforts to focus exclusively on one without attending to the others. The case for ethical environmentalism would be considerably strengthened by the truth of the integration thesis. This chapter presents a series of arguments in support of the integration thesis, each of which builds on the integral connection between distributive fairness and the common good of a society. Policies and laws that at first pass do not appear to be distributive are shown to have distributive effects on the lives of those who are subject to them that merit consideration at the bar of fairness. Given the truth of the integration thesis, the chapter next argues that the project of ethical environmentalism lends substantial support to certain forms of legal paternalism, state support for impersonal goods, such as natural beauty and human excellence, and state support for the goods of tradition. The chapter concludes by relating the project of ethical environmentalism to Devlin’s thesis that a society may use the law to preserve itself.

A high point in the modern debate over the enforcement of morality was reached in the UK in the late 1950s and early 1960s. Consisting of a spirited exchange of essays and lectures between Patrick Devlin, a distinguished sitting judge, and H. L. A. Hart, a professor of jurisprudence at Oxford University, the debate was sparked by the publication of a controversial report commissioned by the British government that recommended that the criminal law in the UK be liberalized regarding prostitution and “homosexual offences.” The Hart/Devlin debate centered on sexual morality, but the issues it raised pertain to a much wider range of concerns. This chapter pays particular attention to the distinctions and arguments the debate introduced concerning legal moralism and legal paternalism. Devlin defended a version of legal moralism. Hart rejected legal moralism, but granted the permissibility of legal paternalism. The chapter distinguishes critical legal moralism from the social legal moralism that Devlin proposed. It argues that a plausible form of legal moralism must be informed by critical morality, not social morality. It also defends the plausibility of moral paternalism and legal moralism.

Proponents of the harm principle often appeal to a notion of personal sovereignty in setting out their position. This notion helps to fix the application of the harm principle. Critics of the harm principle seize on this point and argue that, once a principle of sovereignty is introduced, it can do all the work that needs doing. Appeals to harm become otiose. Further, the critics contend, the harm principle cannot explain the impermissibility of certain “harmless” wrongs, such as those involved in harmless trespass. This chapter assesses this sovereignty-centered critique of the harm principle. It argues that neither the harm principle nor the sovereignty principle enjoys priority over the other. The two principles complement each other with neither meriting a privileged position. The chapter then discusses the content and stringency of the sovereignty principle, and its relation to the Volenti Maxim, which holds that a person is not harmed or wronged by that to which they consent. The critical discussion of the Volenti Maxim, in turn, reveals limits to the sovereignty principle.

Personal liberty can be viewed through the lens of the good or the right. Do we value liberty because it is part of our good, or a means to our good, or do we value it because it is our right to have it? This chapter considers the value of liberty from the standpoint of the good. The ethical environmentalism defended in previous chapters, it argues, must be sensitive to the value of liberty as a personal good. In an important sense, people only lead good lives if they lead free lives. The chapter begins with the common idea that there is, or ought to be, a general presumption in favor of liberty. It next considers deeper ideals of liberty, such as autonomy or authenticity, that can be appealed to in order to explain liberty’s value. These deeper ideals are shown to be genuine ideals but their value is qualified in ways that are not widely appreciated. The chapter concludes by considering expressive or conventional reasons for opposing coercive or manipulative liberty-reducing interventions. It argues that these reasons require a deeper explanation, and one that pulls us beyond the value of liberty understood as a personal good.

This chapter construes positive freedom as an ideal of individual self-mastery.So understood, positive freedom concerns internal factors that, in Isaiah Berlin’s words, “determine someone to do, or be, this rather than that?”Self-mastery is a matter of being determined in the right ways by these internal factors.This chapter first explains how self-mastery contributes to the quality of the lives of those who achieve it.It does so in different, but complementary ways, ways which have not been distinguished or adequately appreciated in the literature on the topic.The chapter next argues that self-mastery is one component of the kind of freedom that a well-functioning state ought to promote in its members.Self-mastery is an individual achievement, but the state can promote it by establishing conditions that facilitate its realization.In presenting these arguments, the chapter rejects the view – sometimes advanced by proponents of positive freedom – that the value of external negative freedom is reducible to its contribution to positive freedom, but it concurs with the view – often advanced by proponents of positive freedom – that the state’s concern with freedom should not be limited to external factors, such as constraining coercion or ensuring that all have access to an adequate range of options.