Crimes against autonomy: Gerald Dworkin on the enforcement of morality.

AuthorBecker, Lawrence C.
PositionResponse to article by Gerald Dworkin in this issue, p. 927

INTRODUCTION

My aim here is to redescribe some familiar ground, in aid of the idea that a principle of equal protection of individual autonomy is fundamental to decisions about which moral norms ought to be enforced through the criminal law. It seems :necessary to do this, because when a distinguished philosopher such as Gerald Dworkin gives us an unsettling essay on a familiar topic, the source of the disturbance is not likely to be internal to the essay itself, at least not in any obvious way. It is more likely that the problem is in the background. My aim is to illuminate this background. The substance will not be new, but my hope is that the way this Essay brings it into focus will help to rehabilitate the idea that Professor Dworkin attacks.

The aim of this redescription is restricted in several ways, however. First, it is part of an explication of liberal political theory rather than an argument that follows from some comprehensive account of morality. My aim will be to show that liberal political theorists plausibly invoke autonomy(1) to explain why they draw the line about criminalization where they do. I leave aside here whether, and if so how, liberal political principles and polity are justified by a comprehensive moral theory. Second, on the assumption that we live in an imperfect liberal democracy, a complex relation will exist between my thesis about autonomy and the actual boundary, in our legal system, between the criminal and the noncriminal. On the one hand, descriptive accuracy will be a test of the autonomy thesis: if it turns out that a proposed principle of autonomy draws a boundary that is radically different from the actual one, the plausibility of the thesis will be in doubt. On the other hand, we must not expect a perfect match between what liberal theory prescribes and what liberal practice in a complex political environment is able to deliver. Rather, we should expect to find and be able to accommodate some inconsistencies and anomalies. Third, the principle I will defend is only a necessary condition for criminal enforcement, not a sufficient one. It thus gives us a good guide to decisions about what must be excluded from the criminal sphere (in liberal theory), but it is not by itself a good guide to decisions about what must be, or should be, included. For the decision about inclusion, there is no substitute for an appeal to consequences.

  1. MORAL NORMS AND NUCLEAR ENFORCEMENT: THE GENERAL PICTURE

    Here is a familiar picture: the norms of morality may be represented as points on a plane. Some of these points (color them red, for convenience) indicate requirements and prohibitions; others indicate judgments about what we "ought" to do that nonetheless fall short of requirements or prohibitions (color them yellow, for cautions); still others indicate conduct in which our choices are matters of moral indifference (color them green)--points at which we are permitted to do just as we please.

    It is clear that it is logically possible to arrange these red, yellow, and green points on the normative plane in a variety of interesting ways, ranging from something like an exercise in pointilist painting to drawings in a cell biology textbook. The standard way of representing the normative plane, however, is to group the points in each of the normative categories together into a series of concentric figures. On the assumption--or perhaps a desperate hope--that the least restrictive norms are the most numerous, we typically imagine the green ones--permissions--as being in the largest, outermost figure, perhaps even in an unbounded field. This large green field surrounds the set of nonmandatory "oughts," which in turn surrounds requirements and prohibitions. Moreover, we can represent the fact that the norms of each sort are enforced in more or less strict ways by shading these concentric figures so that the color of each becomes more intense, or darker, toward its center. Then, on the assumption that criminal sanctions are the most severe, and reserved for the most important norms of the most restrictive sort, we have what I call a nuclear picture of the enforcement of morals problem: we think of criminal law as properly enforcing only a small nucleus of the most significant moral requirements and prohibitions.

    Wittgenstein has cautioned us not to be captured, in doing philosophy, by pictures that we have not studied carefully from outside their frames, as it were.(2) In the case of the standard picture of the normative plane, this is very good advice. For one thing, it follows immediately from the standard picture that Hart's answer to the enforcement of morals question he considers is necessarily and trivially correct: It cannot follow merely from the fact that something is a moral norm somewhere on the normative plane that it belongs in the nucleus of norms that properly are subject to criminal sanctions.(3) In the standard picture, merely being a moral norm of some sort is neither necessary nor sufficient for criminal sanctions, and being a mandatory moral norm, while a necessary condition, is not a sufficient one. The norm must be a nuclear one. We therefore need some account of what makes a norm a nuclear one, and in a liberal political polity it is natural to think that this account would have to be given in terms of the core principles of the theory, namely autonomy and liberty.

    Of course it will be possible, within the standard picture of concentric figures on the normative plane, to propose a very restrictive definition of morality--one, for example, that defines matters of moral concern as involving only the most significant sorts of requirements and prohibitions. This will make it true by definition--or at any rate, thinkable--that moral status might be sufficient to justify criminal enforcement of a given norm. Such a restrictive definition of morality would, for example, place eudaemonistic and perfectionistic considerations in a larger-or perhaps wholly separate--category of the "ethical" and would reserve large areas of the plane for nonmoral and even nonethical norms.

    One of the things I want to suggest, though I will not take time to develop it, is that unacknowledged differences about the concept of a moral norm often generate differences about whether moral norms should be enforced criminally. If one wishes to reserve the term "moral" for the most important region of the most restrictive class of norms on the normative plane, then I suppose it is plausible that he might think that all moral norms are at least candidates for such criminal sanctions. If one takes a more traditional, wider view of moral norms, however, it will seem preposterous to think that mere moral status makes them candidates for criminal law enforcement.

    It seems to me that this...

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