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22 Law & Phil. 1 (2003)

handle is hein.journals/lwphil22 and id is 1 raw text is: PHILIP MONTAGUE

(Accepted 2 October 2002)
According to John Stuart Mill,
... the only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others.1
If this position (henceforth Mill's doctrine) is correct, then the law
has no business prohibiting actions on paternalistic grounds. Neither
should activities such as (consensual) prostitution or homosexuality
be criminalized on moral grounds alone - that is, on grounds inde-
pendent of harm they do to individuals other than their participants.
Mill's doctrine is vigorously criticized by James Fitzjames
Stephen, and certain of Stephen's criticisms are echoed by Patrick
Devlin in his lectures on the enforcement of morals. Both Devlin
and Stephen endorse legal moralism, according to which criminal
prohibitions can properly apply to actions that are not covered by
Mill's doctrine - to what Joel Feinberg calls harmless wrong-
doing.2 Feinberg himself defends Mill's doctrine against Devlin's
and Stephen's attacks. In doing so, Feinberg joins H. L. A. Hart,
whose debate with Devlin has drawn considerable attention to
questions regarding the justification of criminal prohibitions.
My concern in this essay is with a particular objection that
Stephen and Devlin raise against Mill's doctrine. They argue that, in
classifying only harmful actions as punishable by law, the doctrine
1 John Stuart Mill, On Liberty, Chapter 1.
2 See Feinberg's discussion of this category of actions in his Harmless
Wrongdoing (New York: Oxford University Press, 1990), pp. 1-8, 124-175.
As Feinberg points out, proponents of legal moralism sometimes appeal to the
idea that acts that do no ordinary harm to other individuals might nevertheless
harm society in some way, and hence be justifiably criminalized. Joel Feinberg,
Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall, 1973), pp. 37-38. As
legal moralism and Mill's doctrine are being interpreted here, however, they refer
to harm that is done to individuals.
Lu Law and Philosophy 22: 1-19, 2003.
IT © 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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