Moral reasons and the limitation of liberty.

• Author: Murphy, Jeffrie G.
• Position: Response to article by Gerald Dworkin in this issue, p. 927

I find myself in substantial agreement with Professor Dworkin, and I find this deeply disturbing--not merely because it will make my role as his commentator more difficult, but also for reasons of a more personal nature. I have long held the belief that developing a sympathy for conservative positions is simply a sign of growing old, and thus I view with considerable alarm my increasing sympathy for Lord Devlin's attack on John Stuart Mill's Harm Principle--a principle long considered central to the liberal theory of law, particularly criminal law.

Indeed, I am in much worse shape in this regard than Professor Dworkin because, a couple of years ago, I published an essay in which I expressed even greater support for Devlin's views than that expressed by Professor Dworkin and was even harsher in my criticisms of Joel Feinberg's liberal attempt to defeat those views.(1) In that essay, I argued not merely that most Mill-inspired arguments against Devlin were less successful than I had once thought, but also that Devlin had made some important points of his own against his opponent's liberal views.(2) I argued that Devlin had made a start toward showing that some positions strongly favored by many liberals are not consistent with simply ruling out, as legally irrelevant, non-neutral judgments about personal goodness or the good life.(3) In particular, I argued that regarding certain constitutional rights as fundamental (e.g., free exercise of religion) presupposes a conception of the human good, as does a substantial amount of the retributive component in criminal sentencing.(4) I do not propose to rehearse here all that I wrote in that essay, but I do strongly recommend that you read it. At the very least, it will alert you to what you might expect of yourself as you grow old.

What, then, shall I do in my role as commentator on Professor Dworkin's essay? Rather than further explore the pros and cons of Lord Devlin's views, I shall instead--after a brief scholarly quibble--focus on the final section of Professor Dworkin's essay and on his suggestion, with which I generally agree, that the liberal position is sometimes best defended, not with some abstract general principle claiming that private immorality is simply not the law's business, but rather with reflection on the particular judgments of immorality themselves--what they mean and whether they can be rationally defended. In pursuing this thought, I will focus on the criminalization of private homosexual sodomy between consenting adults--Lord Devlin's issue(5)--and will explore the concept of morality that was at work in the Supreme Court's decision in the 1986 case Bowers v. Hardwick.(6) In Bowers, the Court held that the supposed moral objection that a majority of Georgia citizens had to homosexual sodomy was a rational basis for criminalizing the practice.(7)

First, though, the scholarly quibble. In the cases in which Professor Dworkin does wish to defend certain liberal positions on principle, the principle he favors he characterizes as the "Kantian" principle of "the protection of autonomy and equal respect for persons."(8) Although it has been years since I have done serious Kant scholarship--and my memory may be defective here--it strikes me that Professor Dworkin's own understanding of the concepts of autonomy and respect for persons is not obviously Kantian in nature. Professor Dworkin is inclined to defend in principle, for example, a doctrine of free speech that includes the right to hurl "racial insults" as a part of a legitimate "sphere of autonomy for individuals to engage in."(9)

I am not at all sure, however, that Kant would protect the hurling of racial insults as an exercise of autonomy in his sense. In Kant's sense, autonomy is--I think--best understood not simply as doing whatever comes into one's mind for whatever motive, but rather as the exercise of one's capacity for practical reason--the use, in John Rawls's language, of one's "moral powers."(10) It is not obvious that a racial insult is an expression of autonomy in this sense; it is, indeed, far more likely to be expressive of heteronomy. One might still be able to make a case for the protection of racial insults by appealing to other aspects of Kant's philosophy--e.g., his notion in the Rechtslehre that coercion is justified only to prevent one citizen from using "external freedom" in such a way as to interfere with the external freedom of another citizen.(11) I think, however, that one distorts this notion of external freedom if one tries to interpret it in light of Kant's much more restrictive concept of autonomy--a concept that seeks to capture our status as rational and moral beings. This status is typically revealed when we seek to reason together, not when we let ourselves get carried away by base emotions and shout insults at each other.

With this scholarly quibble out of the way, let me now move to a discussion of Bowers v. Hardwick. I will discuss this case not as an expert in constitutional law--I am not one--but rather as a philosopher interested in finding out whether the Court's reasoning in this and other cases can inform and enrich our moral and political thinking about democratic government, a form of government that should be...