Sex, Drugs, Death, and the Law

An Essay on Human Rights and Overcriminalization

  Introduction and Chapter 1 — Human Rights and the Public Morality

    David A. J. Richards

Introduction

    This book is written from the perspective of a teacher of law in the areas of constitutional and criminal law and of a moral and legal philosopher concerned with the investigation of concepts of law, justice, and human rights. Accordingly, the approach here taken is interdisciplinary: the adequate analysis of these, as of many other, legal problems requires that one be a philosopher in doing law, or, alternatively, that one do law philosophically. Indeed, the approach here is even more ambitiously interdisciplinary than a training in law and philosophy would warrant. For, in the investigation and criticism of the gross and unjust overcriminalization typical of American criminal justice, I have found it necessary not only to draw on forms of legal and philosophical argument, but to trace the links of the subjects under investigation to history, psychology, social science, and even literature. The deeper criticism of overcriminalization requires a form of empirical inquiry into the background assumptions that often uncritically underlie the common American sense of proper criminalization. Accordingly, as the argument evolves, we will explore such assumptions and other often detailed empirical arguments establishing factual premises fundamental to the rational discussion of these issues.
    My intent here is to develop a new form of moral, legal, and political argument that connects the moral criticism of overcriminalization not to utilitarianism but to antiutilitarian conceptions of human rights (Chapter 1). This argument of general political theory is used to delineate deep commitments of American constitutionalism and thus to explain and justify specific forms of judicially enforceable constitutional argument, grounded on the constitutional right to privacy, and more general forms of liberal argument, which urge legislatures to replace the improper use of the criminal sanction with reasonable forms of regulation more consistent with basic respect for the rights of the person. The implications of this general argument are explored in detail in three general areas of proposed decriminalization: consensual adult sexual relations (in particular, homosexuality in Chapter 2 and commercial sex in Chapter 3), drug use in Chapter 4, and decisions on the right to die in Chapter 5. The resulting argument connects the limits of the criminal sanction to a general conception of personal responsibility for the meaning of individual human life (Chapters 5 and 6).

 

1. Human Rights and Public Morality under Constitutional Democracy

    As an initial matter, it is important to put the moral criticism of overcriminalization in some historical context. Any coherent account of the ethical foundations of the substantive criminal law and its connections to constitutional principles must take seriously the radical vision of the rights of the person that underlies the United States Constitution and its precepts of criminal law. The idea of human rights was a major departure in civilized moral thought. When Locke, Rousseau, and Kant progressively gave that idea its most articulate and profound theoretical statement,[1] they defined a way of thinking about the moral implications of human personality that was radically new. One central critical focus of this new perspective was the criminal law. The Constitution and Bill of Rights of the United States, in implementing these ideas, not only required just forms of criminal procedure,[2] but also placed limits on the substantive scope of the criminal law. These limits included not only mens rea, actus reus, legality, and proportionality requirements,[3] but also the limitations imposed by the religion and free speech clauses of the first amendment on federal and (after incorporation) state power to criminalize certain kinds of conduct.[4]
    Several provisions of the French Declaration of the Rights of Man and of Citizens, adopted by the French National Assembly in 1789, went beyond the United States Constitution in placing express constraints on the scope of the substantive criminal law.[5] Specifically, persons were to have "the power of doing whatever does not injure another," free of the threat of criminal penalties.[6] The Napoleonic Code, whose conception of the proper scope of the substantive criminal law appears to have been inspired by the provisions, accordingly imposed no criminal sanctions on consensual adult sexual acts, such as homosexuality and prostitution.[7]
    No comparable general principle then existed in the Anglo-American political and legal tradition. In the United States, the largely unexamined governing assumption, which continues to have vitality, was that the public morality, which the criminal law enforces, is simply the set of moral values at the core of the Calvinist religious conception and its derivatives. America is, after all, a nation founded by religious extremists who conceived their task as building a New Jerusalem in express contrast to European decadence.[8] The American invention of prisons and the extravagant hopes for moral reform that they embodied for groups like the Quakers[9] were of the same spirit as the later American commitment to the "noble" experiment, Prohibition. The criminalization of alcohol was one manifestation of the power of the Calvinistic purity reformers of the nineteenth and early twentieth centuries. It was their tradition that decisively shaped America's common sense of morality and created the expectation that criminal justice could and should radically reform corrupt human nature.[10] Many Americans today, responding to felt injustices in our criminal justice system at every stage of its operation, question the assumptions underlying this conception of criminal justice. A natural means of examining the conception is to conduct a philosophical analysis of its assumptions. One available theory for such an analysis is utilitarianism, which radically questions the whole perspective on human rights implicit in American constitutionalism; another is an antiutilitarian natural rights theory, which takes seriously ideas of human rights implicit in American constitutional practice but affords a critical organon for reinterpreting their implications for criminal justice.

 

I. THE UTILITARIAN CRITIQUE OF OVERCRIMINALIZATION

    The utilitarian argument against the Anglo-American conception of criminal justice began with the publication in 1859 of John Stuart Mill's On Liberty.[11] Mill proposed a general doctrine that may be termed the "harm principle." This principle limits the scope of the criminal law in the following ways:
    1. Acts may properly be made criminal only if they inflict concrete harms on assignable persons.[12]
    2. Except to protect children, incompetents, and "backward" peoples,[13] it is never proper to criminalize an act solely on the ground of preventing harm to the agent.[14]
    3. It is never proper to criminalize conduct solely because the mere thought of it gives offense to others.[15]
    Although Mill's harm principle places a constraint on the criminal law comparable to the one embodied in the French Declaration of Rights, Mill did not justify the constraint on the basis of the human rights paradigm, as did the French Declaration. Rather, Mill appealed to a general utilitarian argument, derived from Jeremy Bentham,[16] that failing to follow the harm principle reduces the aggregate surplus of pleasure over pain. Mill was less doctrinaire in his opposition to the language and thought of rights than Bentham,[17] and some find in On Liberty rights-based arguments of personal autonomy.[18] But although Mill did give great weight to preserving the capacity of persons to frame their own life plans independently, he appears—in accordance with his argument in Utilitarianism[19] —to have incorporated this factor into the utilitarian framework of preferring "higher" to "lower" pleasures. Thus, the argument of On Liberty is utilitarian: the greatest aggregate sum by which pleasure exceeds pain, taking into account the greater weight accorded by utilitarianism to higher pleasures, is secured by granting free speech and observing the harm principle.
    The Anglo-American tradition of opposition to overcriminalization, initiated by Mill, has—following Mill—conceived of the issue in utilitarian terms. This tradition relies, when seeking the decriminalization of "victimless crimes,"[20] on efficiency-based arguments deploring the pointless or counterproductive use of valuable and scarce police resources in the enforcement of these laws. The pattern of argument and litany of evils are familiar. H. L. A. Hart, for example, in his defense of the recommendation of Great Britain's Wolfenden Committee to decriminalize consensual adult homosexuality and prostitution,[21] conceded that some "victimless crimes" are immoral, and then discussed in detail the countervailing and excessive costs of preventing them.[22] In the United States, commentators have emphasized pragmatic arguments that are implicitly utilitarian, identifying tangible evils that enforcement of intangible moralism appears quixotically to cause.[23] Victimless crimes typically are consensual and private, and as a result, there is rarely either a complaining victim or a witness. In such cases, police must resort to enforcement techniques, such as entrapment, that are often unconstitutional or unethical and that tend to corrupt police morals.[24] Enforcement costs also include the cost of forgoing opportunities to enforce more "serious" crimes.[25] When the special difficulty of securing sufficient evidence for conviction and the ineffectiveness of punishment in deterring these acts are considered, the utilitarian balance sheet condemns criminalization as simply too costly.
    The utilitarian cast of these arguments is understandable in a nation like Great Britain, where they must be made to a parliament that enjoys constitutional supremacy. In the United States, however, arguments of this kind are made not only to legislatures but also to countermajoritarian courts empowered with judicial supremacy in the elaboration of a charter of human rights. Since 1965, the United States Supreme Court has invoked a constitutional right of privacy to invalidate the use of criminal sanctions against the purchase or use of contraceptives by adults, married[26] and unmarried,[27] and, more recently, minors;[28] the use of pornography in the home;[29] and the use of abortion services by adults[30] and, more recently, minors.[31] In addition, state courts have elaborated a similar right under state constitutions to permit the withdrawal of life support systems from irreversibly comatose, terminally ill patients.[32] One state court has interpreted the privacy right in its state constitution to permit the use of marijuana in the home,[33] and another court has held that the use of peyote by Native Americans in religious ceremonies is a constitutionally protected form of free exercise of religion.[34]
    It is difficult, if not impossible, to reconcile the notion of privacy rights that these cases embody with the utilitarian policy arguments that decriminalization proponents generally use. Indeed, the status and rationale of the constitutional right of privacy are at the center of contemporary controversy over constitutional theory and practice. It is argued that the right of privacy is policy-based, legislative in character, and unneutral, and therefore may not properly be adopted by courts, whose decisions must be governed by neutral principles of justification.[35] If the deployment in these cases of the constitutional privacy right or other rights must be construed in utilitarian terms such objections may be conclusive, and decriminalization arguments would be properly directed only to legislatures, not to courts.
    It is quite natural to interpret the harm principle as derivative from some more general utilitarian argument. Harm appears to be a quasiutilitarian concept at least insofar as utilitarianism seeks to avoid pain. There are several powerful objections to this interpretation, however.
    First, utilitarian arguments for decriminalization proselytize the already converted and do not seriously challenge the justifications that defenders of criminalization traditionally offer. For these defenders, the consensual and private character of prohibited acts, even when coupled with the consequent higher enforcement costs, is not sufficient to justify decriminalization. They point out that many consensual acts, such as dueling, are properly made criminal and that many nonconsensual acts are also properly criminal despite comparably high enforcement costs. The prosecution of intrafamilial homicide, for example, requires intrusion into intimate family relations, and yet intrafamilial homicide is not therefore legalized.[36] Certainly, if there is a good moral reason for criminalizing certain conduct, quite extraordinary enforcement costs will justly be borne. Accordingly, efficiency-based arguments for decriminalization appear to beg the question. They have weight only if the conduct in question is not independently shown to be immoral. But the decriminalization literature concedes the immorality of such conduct, and then elaborates arguments, based on efficiency and costs, that can have no decisive weight.[37]
    The absence of critical discussion of the focal issues that divide proponents and opponents of criminalization has made decriminalization arguments much less powerful than they can and should be. In practice, efficiency-based arguments have not been very successful in reducing the scope of "victimless crimes," whether by legislative penal code revision or by judicial invocation of the constitutional right to privacy. The wholesale or gradual decriminalization of contraception, abortion, consensual noncommercial sexual relations between or among adults, and decisions by the terminally ill to decline further treatment[38] has resulted from a shift in moral judgments: these acts are no longer believed to be morally wrong.[39] In contrast, where existing moral judgments have remained unchallenged—as, for example, with commercial sex[40] and many forms of drug use[41] —movement toward decriminalization has been either negligible[42] or haphazard.[43] Yet the decriminalization literature has failed to address these moral questions, perhaps because utilitarianism is presumed to be the only enlightened critical morality.[44] In order to give decriminalization arguments the full force they should have, it is necessary to supply the missing moral analysis. The absence of such analysis has prevented us from seeing the moral needs and interests that decriminalization in fact serves. To this extent, legal theory has not responsibly brought to critical self-consciousness the nature of an important and humane legal development.
    A second objection may be made to the utilitarian interpretation of the harm principle. The harm principle is not a necessary corollary of utilitarian tenets. The basic desideratum of utilitarianism is to maximize the surplus of pleasure over pain. If certain plausible assumptions about human nature are made, however, utilitarianism would require the criminalization of certain conduct in violation of the harm principle. Assume, for example, that an overwhelming majority of people in a community take personal satisfaction in their way of life and that their pleasure is appreciably increased by the knowledge that conflicting ways of life are forbidden by the criminal law. Suppose, indeed, that hatred of the nonconforming minority, legitimated by the application of criminal penalties, reinforces the pleasurable feelings of social solidarity, peace of mind, self-worth, and achievement in a way that tolerance, with its invitation to self-doubt, ambivalence, and insecurity, could not. In such circumstances, the greater pleasure thus secured to the majority may not only outweigh the pain to the minority but, as compared to the toleration required by the harm principle, may result in a greater aggregate of pleasure; accordingly, utilitarianism would call for criminalization in violation of the harm principle.
    Utilitarians defend the harm principle against such a plausible interpretation of utilitarianism by excluding the offense taken at the mere thought of certain conduct as a ground for criminalization.[45] Yet, how, on utilitarian grounds, can any form of pleasure or pain be thus disavowed as morally irrelevant? Mill appears to have argued that this exclusion follows from the greater weight accorded to autonomy by utilitarianism, both in and of itself (as a higher pleasure) and instrumentally as a means of encouraging innovations and experiments that may enable people to realize more pleasure in their lives. Mill did not, however, explain why autonomy should be given such decisive weight, either as a pleasure in and of itself or as an instrument whose value is so great that other pleasures should be wholly excluded from the utilitarian calculus in order to preserve it. Certainly, the exercise of the competences that accompany rational autonomy often gives pleasure, but it also yields the pain of self-doubt, ambivalence, and insecurity. In any event, why should these pleasures and pains be considered more important within the utilitarian scheme than the pleasures of security, peace of mind, and solidarity, which Mill appears to have disavowed? Although the claims for autonomy on instrumental grounds introduce consequentialist arguments to which utilitarians must give weight, it is difficult to see how these arguments can be regarded as decisive. As an empirical matter, autonomy may lead to creative innovation and experiment, but it also may lead to empty distractions, idle fantasies, and wasted lives. The potential effects weigh on both sides of the utilitarian scales, with perhaps some tilt toward protecting autonomy, but not to the degree that Mill's argument requires.
    In order to place the principle of not criminalizing conduct that does not harm others on sound foundations, its moral basis must be interpreted in a non-utilitarian way.[46] Such an interpretation would be more consistent with the historical origins of the principle in the rights-based conception of the French Declaration of the Rights of Man and of Citizens, with the American constitutional tradition, which has based decriminalization arguments on the constitutional right to privacy, and with the texture and resonance of Mill's own intuitive spirit in On Liberty.
    This alternative approach entirely abandons Mill's strategy of interpreting the role of autonomy in the defense of the harm principle as an aspect of the ultimate utilitarian good of maximizing the surplus of pleasure over pain. Instead, this chapter will show the harm principle to be a natural consequence of an ethical conception of human rights, in which autonomy is an ultimate good.

 

II. HUMAN RIGHTS AND THE MORAL FOUNDATIONS OF THE CRIMINAL LAW

    In order to present an alternative conception of proper criminalization of acts in a constitutional democracy fundamentally committed to human rights, this chapter will first introduce an explanation of the concept of human rights. It will then show that recent deontological moral theory expresses this concept in a sharply antiutilitarian fashion, and will analyze the implications of this theory for the proper limits of the criminal law. Finally, it will show how this conception elucidates the harm principle in a way that utilitarianism cannot.

 

A. The Concept of Human Rights

    As suggested above, when Locke, Rousseau, and Kant progressively gave the idea of human rights its most articulate and profound theoretical statement, they defined a way of thinking about the moral implications of human personality that was radically new.[47] Recent deontological moral theory, particularly as articulated by John Rawls[48] and Alan Gewirth,[49] enables us to understand and explicate these conceptions in a forceful way, as a plausible alternative to utilitarianism. It also provides us with an effective tool for rebutting familiar Benthamite criticisms of the idea of human rights.[50] Specifically, these neo-Kantian moral theorists have explicated the concept of human rights in terms of an autonomy-based interpretation of treating persons as equals.
    1. AUTONOMY. Autonomy, in the sense fundamental to the idea of human rights, begins with the conception that persons have a range of capacities that enables them to develop, to want to act on, and in fact to act on higher-order plans of action that take as their object their lives and the way they are lived, and to evaluate and order their lives according to principles of conduct and canons of ethics to which they have given their rational assent.[51] The philosopher Harry Frankfurt made this point when he argued that an "essential difference between persons and other creatures is to be found in the structure of a person's will."[52] The difference between human beings and animals is not, Frankfurt argued, that the former have desires and motives, or that they make decisions based on prior thought; certain lower animals may have these characteristics as well. Rather, besides wanting, choosing, and being moved to do this or that, persons may want to have or not to have certain desires. As Frankfurt put it, persons

are capable of wanting to be different, in their preferences and purposes, from what they are. Many animals appear to have the capacity for... "first-order desires" or "desires of the first order," which are simply desires to do or not to do one thing or another. No animal other than man, however, appears to have the capacity for reflective self-evaluation that is manifested in the formation of second-order desires.[53]

    The complex human capacities that constitute autonomy include language, self-consciousness, memory, logical relations, empirical reasoning about beliefs and their validity (human intelligence), and the capacity to use normative principles, including, inter alia, principles of rational choice, to decide which among several ends may be most effectively and coherently realized. These capacities permit persons to make independent decisions regarding their lives: which of their first-order desires will be developed and which disowned, which capacities cultivated and which left fallow, with what or with whom in their life histories they will or will not identify, what they will define and pursue as basic goals, and what they will strive toward as an aspiration. For example, persons establish priorities and schedules for the satisfaction of first-order desires. The satisfaction of certain wants, such as hunger, is regularized; the satisfaction of others is sometimes postponed—marriage, for example, may be delayed in order to first secure other objectives. Persons sometimes gradually eliminate certain desires (smoking or gluttonous appetite) or encourage the development over time of others (cultivating their sensibility to love and tender mutual response).[54] The mark of personhood is precisely this capacity to assess and change one's life in such ways: to see certain aspects of one's life as irrational, self-defeating, or morally wrong, while seeing other aspects as rational, competent, or morally desirable, and to take corresponding critical attitudes expressed in uniquely personal emotions—regret, shame, or guilt, or, on the other hand, self-respect, pride, or a sense of integrity.[55]
    Crucially, the idea of "human rights" respects this capacity of persons for rational autonomy—their capacity to be, in Kant's memorable phrase, free and rational sovereigns in the kingdom of ends.[56] Kant characterized this ultimate normative respect for the revisable choice of ends as the dignity of autonomy,[57] in contrast to the heteronomous, lower-order ends (pleasure, talent) among which the person may choose. Kant thus expressed the fundamental liberal imperative of moral neutrality with regard to the many disparate visions of the good life: the concern embodied in the idea of human rights is not with maximizing the agent's pursuit of any particular lower-order ends, but rather with respecting the higher-order capacity of the agent to exercise rational autonomy in choosing and revising his ends, whatever they are.
    2. TREATING PERSONS AS EQUALS. The idea of human rights also views all persons' capacities for autonomy as being of equal value. Recent neo-Kantian moral theory has articulated the idea of equality in three ways: (1) equal concern and respect,[58] (2) universalizability,[59] and (3) that all persons are equal parties to the social contract.[60]
    The notion of treating persons as equals is, of course, ambiguous. A fundamental way to distinguish among moral theories is to focus on how they differently resolve this ambiguity. For example, John Stuart Mill, following Bentham, argued that utilitarianism treated people as equals in the sense that everyone's pleasures and pains were impartially registered by the utilitarian calculus; thus, utilitarianism satisfies[61] the fundamental moral imperative of treating persons as equals, where the criterion of equality is pleasure or pain. To humane liberal reformers like Mill the great attraction of utilitarianism was precisely its capacity to interpret sensibly the basic moral imperative of treating people as equals in a way that enabled reformers concretely to assess institutions in the world in terms of human interests.[62] Any alternative to utilitarianism must provide a coherent interpretation of treating people as equals which also enables critical moral intelligence concretely to assess institutions in terms of relevant consequences. The great challenge to antiutilitarian moral theory is to explain why it better explicates the moral imperative of treating persons as equals in a way that also supplies coherent substantive principles of humane moral criticism of existing institutions.
    From the perspective of neo-Kantian deontological moral theory, utilitarianism fails to treat persons as equals in the morally fundamental sense. To treat persons in the way utilitarianism requires is to focus obsessionally on pleasure alone as the only ethically significant fact and to aggregate it as such. Pleasure is treated as a kind of impersonal fact, and no weight is given to the separateness of the creatures who experience it. But this treatment flatly ignores that the only ethically crucial fact can be that persons experience pleasure and that pleasure has significance and weight only in the context of the life that a person chooses to lead.[63] Utilitarianism thus fails to treat persons as equals in that it literally dissolves moral personality into utilitarian aggregates. In contrast, neo-Kantian deontological moral theory interprets treating persons as equals not in terms of lower-order ends persons may pursue, pleasure or pain, but in terms of personhood, the capacity of each person self-critically to evaluate and give order and personal integrity to one's system of ends in the form of one's life. The fundamental and ethically prior fact is not pleasure and the maximum impersonal aggregations thereof, but so expressing equal concern and respect for the capacities of personhood that people may equally develop the capacities to take ultimate responsibility for how they live their lives and revise them accordingly. It is no accident that from Kant[64] to Rawls[65] and Gewirth[66] this perspective has been supposed to justify human rights that are not merely nonutilitarian, but antiutilitarian. Thus to express equal respect for personal autonomy is to guarantee the minimum conditions requisite for autonomy; ethical principles of obligation and duty rest upon and insure that this is so and correlatively define human rights. Without such rights, human beings would lack, inter alia, the basic opportunity to develop a secure sense of an independent self. Instead they simply would be the locus of impersonal pleasures that which could be manipulated and rearranged in whatever ways would aggregate maximum utility overall, for all individual projects must, in principle, give way before utilitarian aggregates. Rights insure that this not be so, a point Dworkin has made by defining rights as trumps over countervailing utilitarian calculations.[67]

 

B. Recent Neo-Kantian Theory and Human Rights

    The task of interpreting human rights in terms of the autonomy-based interpretation of treating persons as equals has been substantially furthered by the recent revival of contractarian theory in the work of John Rawls and the similar neo-Kantian construction of Alan Gewirth.
    1. JOHN RAWLS. Rawls's contractarian theory explicates human rights and their institutionalization in American constitutional law in a way that the existing moral theories of constitutional theorists— utilitarianism[68] and value skepticism[69] —cannot imitate. The great early theories of human rights—those of Locke, Rousseau, and Kant—elements of which underlie American constitutionalism, all invoked, explicitly or implicitly,[70] contractarian metaphors in explaining the concrete implications of autonomy and equal concern and respect. The basic moral vision of these theorists was that human institutions and relationships should be based on equal concern and respect for personal autonomy or, as I have put it above, on an autonomy-based interpretation of treating persons as equals. The requirements of this moral point of view were expressed by the idea that a just society was one governed by an agreement or social contract arrived at by the consent of all persons starting from a position of basic equality. Rawls's contractarian model has the great virtue of showing the continuing intellectual and moral vitality of this kind of metaphor. The basic analytic model is this:[71] moral principles are those that perfectly rational persons, in a hypothetical "original position" of equal liberty, would agree to as the ultimate standards of conduct applicable at large.[72] Persons in the original position are thought of as ignorant of any knowledge of their specific situations, values, or identities, but as possessing all knowledge of general empirical facts, capable of interpersonal validation, and holding all reasonable beliefs. Because Rawls's concern is to apply this definition of moral principles to develop a theory of justice, he introduces into the original position the existence of conflicting claims to a limited supply of general goods and considers a specific set of principles to regulate these claims.[73]
    The original position presents a problem of rational choice under uncertainty. Rational people in the original position have no way of predicting the probability that they will end up in any given situation of life. If a person agrees to principles of justice that permit deprivations of liberty and property rights and later discovers that he occupies a disadvantaged position, he will, by definition, have no just claim against deprivations that may render his life prospects meager and servile. To avoid such consequences, the rational strategy in choosing the basic principles of justice would be the conservative "maximin" strategy:[74] one would seek to maximize the minimum condition, so that if a person were born into the worst possible situation of life allowed by the adopted moral principles, he would still be better off than he would be in the worst situation allowed by other principles.
    The choice of which fundamental principles of justice to adopt requires consideration of the weight assigned to general goods by those in the original position. "General goods"[75] are those things or conditions that all people desire as the generalized means to fulfillment of their individual life plans.[76] Liberty, understood as the absence of constraint, is usually considered to be one of these general goods. Similarly classifiable are powers, opportunities, and wealth.[77]
    Among these general goods, self-respect or self-esteem, a concept intimately related to the idea of autonomy, occupies a place of special prominence.[78] Autonomy, seen now in the light of contractarian theory, is the capacity of persons to plan, shape, and revise their lives in accordance with changing desires and aspirations assessed in terms of arguments and evidence to which the person gives rational assent. As such, autonomy involves such essentially human capacities as thought and deliberation, speech, and craftsmanship. The competent exercise of such abilities in the pursuit of one's life plan forms the basis of self-respect,[79] without which one is liable to suffer from despair, apathy, and cynicism. Thus persons in the original position, each concerned to create favorable conditions for the successful pursuit of his life plan but ignorant of the particulars of his position in the resulting social order, would agree to regulate access to general goods so as to maximize the possibility that every member of society will be able to achieve self-respect. Accordingly, self-respect may be thought of as the primary human good.[80]
    Thus Rawls's contractarian construction provides an interpretation of the moral weight of autonomy—autonomy as a feature of the primary human good—and equality—the original position of equal liberty—and affords a decision-making procedure, the maximin strategy, which provides a determinate substantive account for the content of human rights as minimum conditions of human decency. An important feature of the contractarian interpretation of autonomy is the assumption of ignorance of specific identity and the consequent requirement that a decision be reached on the basis of empirical facts capable of interpersonal validation. This assumption assures that the principles decided on in the original position will be neutral as between divergent visions of the good life, for the ignorance of specific identity deprives people of any basis for illegitimately distorting their decisions in favor of their own vision. Such neutrality, a fundamental feature of the idea of political right,[81] insures to people the right to choose their own lives autonomously.[82]
    2. ALAN GEWIRTH. Both Rawls and Gewirth give expression to the autonomy-based interpretation of treating persons as equals in terms of variant interpretations of Kantian universalizability. Rawls does so in terms of the veil of ignorance which enables the agent to abstract from her or his particular ends, so that one captures the idea that in thinking ethically one respects higher-order capacities of personhood, not lower-order ends which happen to be pursued; also in terms of the idealized contractual hypothesis whereby what persons would agree to therein comes to the same thing as what each person, thus idealized, would universalize for all persons alike. Gewirth follows Kant more literally. He argues that ethical reasoning, as such, is marked by a certain phenomenology—namely, in reasoning ethically, an agent abstracts from her or his particular ends—thinking in terms of human action in general versus any particular ends of human action, which turns out to be what we previously called rational autonomy—and considers what general requirements for rational autonomy the agent would demand for the self, so idealized, on the condition that the requirements be consistently extended to all other agents alike.[83] Clearly Rawls's argument is more abstract but to similar effect: we start not from the particular agent, but from the concept of rational persons who must unanimously agree upon, while under a veil of ignorance as to who they are, the general critical standards in terms of which their personal relations will be governed.
    Both the theories of Rawls and Gewirth are deontological: the idea of moral right is not defined teleologically in terms of maximizing the good, however defined, but in terms of certain principles that express the autonomy-based interpretation of treating persons as equals.[84] It is important to see that this kind of deontological moral perspective, while it rejects as an ultimate moral principle the utilitarian maximization of the aggregate of pleasure over pain, is not incompatible with the relevant assessment of consequences in thinking ethically. Both these theories appeal to consequences in arguing that certain substantive principles would be universalized (Gewirth) or agreed to (Rawls). Thus Gewirth has argued that the universalizing agent would assess the necessary substantive or material conditions for rational autonomy and would universalize these conditions; the consequences of universalization thus determine what would be universalized. Correspondingly, Rawls's contractors consider the consequences of agreeing to certain standards of conduct as part of their deliberations.
    The main substantive difference between these two theories is in Rawls's argument that the contractors of the original position, in the conditions of uncertainty—not knowing who they are and thus how they will be specifically affected by agreeing to certain principles—would find it rational to maximin, viz., agree to that set of principles which would make the worst off best off. Gewirth has resisted the thoroughgoing application of this strategy on the ground that, through the veil of ignorance, it too radically treats as morally arbitrary differences between people, not all of which can easily be regarded as ethically fortuitous[85] and thus properly regulated by a principle like maximining (which, in making the worst off best off, tends to be equalizing) because, in many cases, the way rationally to make the worst off best off is to abolish the worst off classes altogether by mandating equality. We do not have to pursue this disagreement here, as its substantive upshot is in terms of narrow issues of economic distributive justice, which are not our present concern. For present purposes it is important to keep in mind the broad common ground shared by Rawls and Gewirth. Even in the area of distributive justice, both agree about the justice of maintaining a social and economic minimum. Even as regards their differences over maximining it seems clear that Gewirth's insistence, over a wide range of cases, that each person, idealized in terms of rational autonomy, should demand for himself or herself whatever can be universalized to other persons converges with maximining, viz., insuring that each person equally has access to certain conditions of well-being and self-respect.[86] With respect to human rights, the consequence of both approaches would be a set of general principles of critical morality, some of which would involve such fundamental interests that coercion would be justified in enforcing them.[87] These principles, which we can denominate the principles of obligation and duty, would define correlative rights.[88] Let us consider the relevance of this general account of human rights to the analysis of the moral foundation of the criminal law and related constitutional principles.

 

C. The Moral Foundations of the Substantive Criminal Law

    It is an uncontroversial truth that the criminal law rests on the enforcement of public morality, viz., that criminal penalties, inter alia, identify and stigmatize certain moral wrongs that society at large justifiably condemns as violations of the moral decency whose observance defines the minimum boundary conditions of civilized social life.[89] Little critical attention yet has been given in Anglo-American law to the proper explication of the public morality in light of considerations of human rights to which constitutional democracy in general is committed; rather, legal theory and practice have tended to acquiesce in a questionable identification of the public morality with social convention.[90] We are now in a position to articulate an alternative account of the moral foundations of the substantive criminal law, which can illuminate various criminal law and related constitutional law doctrines and the proper direction of criminal law reform.
    The substantive criminal law and cognate principles of constitutional law rest on the same ethical foundations: the fundamental ethical imperative that each person should extend to others the same respect and concern that one demands for oneself as a free and rational being with the higher-order capacities to take responsibility for and revise the form of one's life. Whether one uses Rawls's maximining contractarian hypothesis or Gewirth's universalization of rationally autonomous people, the consequence is the same for purposes of the criminal law. Certain basic principles are agreed to or universalized as basic principles of critical morality, because they secure, at little comparable cost to agents acting on them, forms of action or forbearance from action that rational persons would want guaranteed as minimal conditions of advancing the responsible pursuit of their ends. Furthermore, these principles will be so fundamental in securing either a higher lowest (Rawls)[91] or the conditions of rational autonomy (Gewirth)[92] that, in general, coercion will be viewed as justified, as a last resort, in getting people to conform their conduct to these principles. Accordingly, these principles are commonly referred to as the ethical principles of obligation and duty which define correlative rights.[93]
    One fundamental distinction between these principles of obligation and duty is that some apply in a state of nature, whether or not people are in institutional relations to one another, whereas others arise because of the special benefits that life in institutions and communities makes possible; I shall refer to the former as natural duties[94] and to the fatter as institutional duties and obligations.[95] With respect to natural duties, the principles include, at a minimum, a principle of nonmaleficence[96] (not inflicting harm or gratuitous cruelty), mutual aid[97] (securing a great good, like saving life, at little cost to the agent), consideration[98] (not annoying or gratuitously violating the privacy of others), and paternalism[99] (saving a person with impaired or undeveloped rationality likely to result in severe and irreparable harm). With respect to institutional duties and obligations, the principles include basic principles of justice[100] which regulate such institutions—legal and economic systems, conventions of promise-keeping and truth-telling, family and educational structure—and, in appropriate circumstances, require compliance with the requirements of such institutions,[101] for example, respecting certain property rights. All these principles of obligation and duty—natural and institutional—are formulated in complex terms, and priority relations are established among them to determine, in general, how conflicting obligations should be resolved and what the relative moral seriousness of offenses should be; the infliction of death, for example, is a more grave violation of integrity than a minor battery[102] The general nature of such principles and their derivation from the moral imperative of treating persons as equals, however, seems clear. Such principles secure to all persons, on fair terms, basic forms of action and forbearance from action which rational persons would want enforceably guaranteed as conditions and ingredients of living a life of self-critical integrity and self-respect; correlatively, such principles define human or moral rights, the weight of which as grounds for enforceable demands rests on the underlying moral principles of obligation and duty that justify such enforceable demands. Other moral principles are also agreed to or universalized, but they fall in an area, supererogation,[103] which is not our present concern.
    In understanding the moral foundations of the criminal law, two classes of these moral principles are relevant at different points: (1) the moral principles that define the forms of action and forbearance from action which the criminal law enforces, for example, nonmaleficence, and (2) the principles of justice that regulate the ways in which these moral principles may be enforced.
    With respect to (1), the principles in question require forms of action and forbearance from action that express basic respect for the capacity of persons responsibly to pursue their ends. Such principles impose stringent constraints on the kinds of action and forbearance from action which permissibly may be made subjects of criminal penalty; only those forms of action and forbearance may properly be criminalized which violate rights of the person to forms of respect defined by the underlying principles of obligation and duty.
    With respect to (2), the principles of justice, since the moral principles of (1) are the proper objects of enforcement by forms of force or coercion, ethical principles of justice that govern the proper distribution of such force or coercion are agreed to or universalized[104] Such principles include the general requirement that sanctions be applied only to persons who broke a reasonably specific law, who had the full capacity and opportunity to obey the law, and who reasonably could have been expected to know that such a law existed. In this way, each person is guaranteed the greatest liberty, capacity, and opportunity of controlling and predicting the consequences of her or his actions, compatible with a like liberty, capacity, and opportunity for all. Such a principle can be agreed to or universalized because it is a reasonable way to secure general respect for and compliance with the moral principles of (1) at a tolerable cost; for these conditions provide the fullest possible opportunity for people to avoid these sanctions if they so choose or, at least, the fullest possible opportunity within the constraint that some system of coercive enforcement is justified to insure compliance with the moral principles of (1).[105] In addition, the principles of (2) would include principles of proportionality[106] and effectiveness,[107] which would place constraints on degrees and kinds of sanction that may be used as just criminal sanctions.

 

D. The Harm Principle Reinterpreted

    Consistent with the autonomy-based interpretation of treating persons as equals, the principles underlying a just criminal law require forms of action and forbearance from action that express, on terms fair to all, basic respect for the capacity of persons responsibly to pursue their ends, whatever they are. Such principles impose this constraint: only those forms of action and forbearance that violate rights of the person to forms of respect defined by the underlying principles of obligation and duty may properly be criminalized. This is a salient feature of the perspective of human rights on criminal justice. Thus, Rousseau observed in La Nouvelle Heloise that "to seek happiness and avoid misery in that which does not affect another is a natural right," without which "self-evident and absolute maxim... there is no human action which might not be made a crime,"[108] and the French Declaration of the Rights of Man and of Citizens declares that people are to have liberty from the criminal law "in the power of doing whatever does not injure another."[109] It is striking that Rousseau and the French Declaration formulated the constraint in terms of effect on or injury to others. This is certainly analogous to Mill's harm principle. The harm principle may, however, now be interpreted in a nonutilitarian way as a consequence, not of maximizing pleasure over-all, but of protecting, on fair terms to all, the higher-order rational interests of persons.
    Consider, for example, the derivation of one of the natural duties enforceable by the criminal law, the principle of nonmaleficence: the requirement that persons not intentionally, knowingly, or negligently inflict harms on other persons, except in cases of necessary and proportional self-defense, or in certain extreme cases of just necessity or duress.[110] The principle of nonmaleficence would be agreed to or universalized, consistent with the autonomy-based interpretation of treating persons as equals, because it secures the fundamental interest of personal integrity by means of a prohibition that does not typically require the sacrifice of substantial interests.[111] Self-defense and the like are expressly exempt from this principle because to prohibit them would impose substantial sacrifices.[112]
    The principle of nonmaleficence is thus no broader than necessary to prevent frustration of the rational interests of persons in their personal integrity as a condition of their other aims. It is important to see the part played by harm in properly interpreting the requirements of nonmaleficence. Not all forms of pain infliction, for example, are forbidden by the principle of nonmaleficence, for some are voluntarily undertaken or otherwise reasonable and thus serve the rational interests of persons (for example, in cure). These are not harms. Consider, in this connection, the pain of self-knowledge that good education or therapy sometimes indispensably involves.[113]
    Correspondingly, the principle of nonmaleficence does not forbid killing as such, but only those killings that are harms.[114] Clearly, most killings of persons are harms,[115] in that persons typically have a rational interest in living, which killing frustrates. The rational interest in life, however, is an interest not just in life as such, but also in the realization of plans and aspirations that life makes possible.[116] As we shall later see, persons with coherent and rationally affirmed plans of life may, in certain circumstances, find death to be reasonably justified. One whose illness frustrates all his projects, for whom death is, in any event, highly probable, and for whom pointless pain and physical decline violate ideals of personal integrity and control may find a more rational choice in death than in prolonged life.
    If death in such cases cannot be regarded as harmful, killing in such cases cannot properly be regarded as within the scope of the principle of nonmaleficence. These cases, however, form a limited exception to the principle. As we shall later see, the infliction of death causes no harm only when the individual voluntarily requests it (or it can reasonably be shown that he or she would request it) and the request is a rational outgrowth of the system of ends that the person would, with full freedom and rationality, affirm. It is central to the autonomy-based interpretation of treating persons as equals that the rational self-determination of the person is ethically fundamental, and cannot be parsed in terms of some more basic moral element like pleasure or pain.
    This analysis of the crucial role of harm in the autonomy-based interpretation of nonmaleficence can be extended, with some modifications, to other moral principles. In all such cases the idea of harm and related concepts would be seen, not as components of utilitarian aggregation, but as expressions of the higher-order rational interests of the person that, on fair terms to all, are secured by the relevant moral principles and their enforcement through the criminal law.
    There are three corollaries to this interpretation of the harm principle as a constraint on just criminalization, each of which converges with aspects of Mill's account and suggests that the proper basis for his account is some argument of the form here presented. First, Mill clearly ruled out, as a justification for criminalization, the interest of others in punishing acts that are offensive to their thoughts[117] (no matter how conventional, historically common, or sincerely held). It is difficult to understand how, on purely utilitarian grounds, Mill could have entirely excluded such interests from some weighting in the utilitarian calculus. The autonomy-based interpretation here proposed, however, clearly gives no weight at all to such interests, because they are not rooted in moral principles that respect the rights of the person. Indeed, criminalization on such a basis must itself be the object of moral criticism and constitutional attack, for to give any weight to such interests would violate the rights of the person in the service of mere majoritarian distaste and, possibly, prejudice. From the perspective of the autonomy-based interpretation of treating persons as equals, the extension of the criminal law beyond the confines of the harm principle, properly understood, creates a tyranny of majoritarian convention which, if left without any moral constraint, erodes the foundations of autonomous personhood. Instead, moral precepts, grounded in the harm principle, should limit personal autonomy only where necessary to protect countervailing rights; otherwise, persons should have a general right of personal autonomy.[118] The source of this general right is the fundamental value of liberalism, a focal concern with the capacity of each person, compatibly with a like capacity for all, to address with dignity the central problem of personhood—how to live one's life. Only by refraining from coercive interference with this right do we respect the basic higher-order interests of the person in taking responsibility for his or her own life.[119]
    Second, although the account here proposed, unlike Mill,[120] would not entirely rule out paternalism as a ground for state interference, it does explain why paternalism is suspect and must, to be acceptable, satisfy rigorous scrutiny. If majority prejudices can support the extension of the criminal law beyond the confines of the harm principle, as here interpreted, it is but a small step to the supposition that conduct alleged to be morally wrong is also sufficiently self-destructive to warrant interference on paternalistic grounds.[121] Mill expressed his criticism of such overreaching by ruling out paternalistic arguments entirely. An autonomy-based interpretation of the harm principle need not go so far. As will shortly be shown,[122] the autonomy-based interpretation implies a natural duty of paternalism. This duty will be defined, however, so as to exclude precisely those forms of criminalization that Mill criticized.
    Finally, the account here proposed not only better explains and justifies Mill's argument, it also clarifies the terms of the argument and, in particular, the notion of harm. If the harm principle is interpreted in utilitarian fashion, as Mill's argument appears to suggest, it is difficult to see how it can bear the critical weight that Mill wished to place on it. If we feel the intuitive appeal of harm as a criterion but are puzzled by Mill's ad hoc use of it, we naturally are led to an alternative theory of what harm should mean. The autonomy-based interpretation appears to supply this need. But this can perhaps best be seen in the examination of particular decriminalization controversies.

NOTES

1. See 1. Kant, Foundations of the Metaphysics of Morals (L. W. Beck trans. 1959) [hereinafter cited as Foundations]; 1. Kant, "On the Common Saying: 'This May Be True in Theory, But It Does Not Apply in Practice,'" in Kant's Political Writings 61-92 (H. Reiss ed. 1970) [hereinafter cited as Kant, "On the Common Saying"]; I. Kant, The Metaphysical Elements of Justice (Ladd trans. 1965); l. Locke, "Second Treatise," in Two Treatises of Government 284-446 (P. Laslett ed. 1960); J.-J. Rousseau, "The Social Contract," in The Social Contract and Discourses (G.D.H. Cole trans. 1950). (back)

2. These include requirements for probable cause on arrest, for the issuance of warrants by impartial magistrates for searches and seizures, for jury trials and adversarial procedures, and for the privilege against self-incrimination. See U. S. Const. amends. IV, V, VI, VII. (back)

3. For discussions of these principles, see D. Richards, The Moral Criticism of Law (192-259 (1977); Richards, "Human Rights and the Moral Foundations of the Substantive Criminal Law," 13 Ga. L. Rev. 1395 (1979) [hereinafter cited as Richards, "Human Rights and Criminal Law"]. (back)

4. See generally L. Tribe, American Constitutional Law 576-736, 812-85 (1978). (back)

5. See, for general provisions relevant to the criminal law, French Declaration of the Rights of Man and of Citizens, especially arts. IV, V, VI, VII, VIII, IX, X, XI. (back)

6. Id. art IV. For text, see T. Paine, Rights of Man 133 (H. Collins ed. 1976). (back)

7. See generally V. Bullough, Homosexuality: A History 37 (1979); J. Decker, Prostitution: Regulation and Control 49-53 (1979). For various revisions in the French sexual code, see G. Mueller, The French Penal Code arts. 330-40, at 113 (n.d.). (back)

8. See E. Morgan, The Challenge of the American Revolution 88-138 (1976). (back)

9. See D. Rothman, The Discovery of the Asylum 79-108 (1971). (back)

10. See discussion hereof in Chapter 4. (back)

11. J. S. Mill, On Liberty (A. Castell ed. 1947). (back)

12. Id. at 9. (back)

13. Id. at 10. (back)

14. Id. at 9-10. (back)

15. Id. at 90-91. One of Mill's examples (stopping a person from crossing an unsafe bridge where there is no time to warn, id. at 97-98) suggests, in fact, that he believed there could be just paternalism even in the case of adults. (back)

16. For Bentham's views, unpublished during his lifetime, on the decriminalization of homosexuality, see Bentham, "Offences Against One's Self: Paederasty" (part 1), 3 J. Homosexuality 389 (1978); "Jeremy Bentham's Essay on 'Paederasty'," 4 J. Homosexuality 91 (1978). (back)

17. See generally J. Bentham, "Anarchical Fallacies: Being an Examination of the Declaration of Rights Issued During the French Revolution," in 2 Works of Jeremy Bentham 448 a Bowring ed. 1962) [hereinafter cited as Bentham, "Anarchical Fallacies"]. (back)

18. See, e. g., Ameson, "Mill versus Paternalism," 90 Ethics 470 (1980). (back)

19. See J. S. Mill, Utilitarianism 9-20 (O. Piest ed. 1957). (back)

20. Often the liberal critique is characterized as directed toward "victimless crimes," defined as drug and alcohol abuse, gambling, prostitution, and homosexuality. See N. Morris & G. Hawkins, The Honest Politician's Guide to Crime Control S10 (1970); H. Packer, The Limits of the Criminal Sanction 266 (1968); Kadish, "The Crisis of Overcriminalization," 374 Annals 157, 163 165 (1967) [hereinafter cited as Kadish, "Overcrirninalization"]. See also Model Penal Code §§ 207.1-.6, Comments (Tent. Draft No. 4, 1955); Committee on Homosexual Offenses and Prostitution, The Wolfenden Report (1963) [hereinafter cited as Wolfenden Report]. (back)

21. See Wolfenden Report, supra note 20. (back)

22. H. L. A. Hart, Law, Liberty, and Morality 45-46, 52, 67-69 (1963). (back)

23. See e. g., N. Morris & G. Hawkins, supra note 20; H. Packer, supra note 20; Kadish, "Overcriminalization," supra note 20. (back)

24. See generally J. Skolnick, Justice Without Trial (1966). (back)

25. See works cited at note 23, supra. (back)

26. See Griswold v. Connecticut, 381 U. S. 479 (1965). (back)

27. See Eisenstadt v. Baird 405 U. S. 438 (1972). (back)

28. See Carey v. Population Servs. Int'l, 431 U. S. 678 (1977). (back)

29. See Stanley v. Georgia, 394 U. S. 557 (1969). (back)

30. See Roe v. Wade, 410 U. S. 113 (1973). (back)

31. See Bellotti v. Baird, 443 U. S. 622 (1979); Planned Parenthood v. Danforth, 428 U. S. 52 (1976). (back)

32. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E. 2d 417 (1977); In re Quinlan, 70 N. J. 10, 335 A 2d 647, cert denied, 429 U. S. 922 (1976); In re Eichner v. Dillon, 73 A. D. 2d 431, 426 N. Y. S. 2d 517 (1980), aff'd and modified, N. Y. L. J., April 2, 1981, at 1, col. 2 (N. Y. March 31, 1981). (back)

33. See Ravin v. State, 537 P. 2d 494 (Alaska 1975); cf. People v. Sinclair, 387 Mich. 91, 194 N. W. 2d 878 (1972) (plurality opinion) (classification of marijuana as a narcotic is violative of equal protection). But cf. State v. Kantner, 53 Hawaii 327, 493 P. 2d 306, cert. denied, 409 U. S., 948 (1972) (classification of marijuana as a narcotic is not violative of equal protection). (back)

34. See People v. Woody, 61 Cal. 2d 716, 394 P. 2d 813, 40 Cal. Rptr. 69 (1964); Note, "Native Americans and the Free Exercise Clause," 28 Hastings L. J. 1509 (1977). (back)

35. See generally Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale L. J. 920 (1973); Comment, "Roe v. Wade---The Abortion Dedsion---An Analysis and Its Implication," 10 San Diego L. Rev. 844, 848 51 (1973); Note, "Roe v. Wade and Doe v. Bolton: The Compelling State Interest Test in Substantive Due Process," 30 Wash. S Lee L. Rev. 628, 634-35, 642-43 (1973). (back)

36. For one example of this form of criticism, see Junker, "Criminalization and Criminogenesis," 19 U.C.L.A. L. Rev. 697 (1972). Contra, Kadish, "More on Overcriminalization: A Reply to Professor Junker," U.C.L.A. L. Rev. 719 (1972) (supporting excessive cost rationale). (back)

37. In his argument for decriminalization, H. L. A. Hart did distinguish between "conventional" and "critical" morality, but did not explicate the latter concept. See H. L. A. Hart, supra note 22 at 17-24. For the purposes of his argument, Hart assumed the immorality of the acts in question, and then made various points about the costs that would attach to strict enforcement. (back)

38. See notes 26-32 and accompanying text supra. The United States Supreme Court recently upheld a decision that the constitutional right to privacy did not extend to consensual adult homosexuality. See Doe v. Commonwealth's Attorney for Richmond, 425 U. S. 901 (1976), aff'g mem. 403 F. Supp. 1199 (E. D. Va. 1975) (three-judge court). There has been, however, a gradual movement toward decriminalization of consensual sodomy by legislative repeal. A recent overview indicates that 21 state legislatures have decriminalized. Rivera, "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," 30 Hastings L. J. 799, 950-51 (1979). (back)

39. For an attempt to explain the nature of these changes in moral judgments, see Chapter 2. (back)

40. See chapter 3. (back)

41. There have been shifts toward decriminalization only in the area of marijuana use and possession. See 1976 Ann. Survey Am. L. 343-57. This shift has been limited to the reduction of penalties for the possession and use, but not the sale, of marijuana, and has had no effect on penalties for other forms of drug use. Indeed, some states have increased penalties for other forms of drug use quite drastically. See, e. g., Joint Committee on New York Drug Law Evaluation, The Nation's Toughest Drug Law: Evaluating the New York Experience (1978); Staff Working Papers of the Drug Law Evaluation Project (1978). (back)

42. See Chapter 3. (back)

43. See Chapter 4. (back)

44. H. L. A. Hart appeared to acknowledge the existence of a critical morality that is not necessarily utilitarian, although he did not explore the content of this morality in his discussion of decriminalization. See H. L. A. Hart, supra note 22 at 17-24. But see H. L. A. Hart, Punishment and Responsibility (1968), where he repeatedly insisted that principles of fairness and equal liberty, independent of utilitarian considerations, are needed to account for the principles of punishment, id. at 72-73, and for the form of excuses in the criminal law, id. at 17-24. For a striking attempt by Hart to construct a nonutilitarian theory of natural rights from Kantian premises, see Hart, "Are There Any Natural Rights?" in Society, Law, and Morality 173 (F. Olafson ed. 1961). (back)

45. See text accompanying note 15 supra. (back)

46. For a recent excellent analysis of Mill's argument, which concurs in my view that the argument cannot be grounded in utilitarianism, see C. L. Ten, Mill on Liberty (1980). The account here offered affords the kind of nonutilitarian foundation for Mill's argument which is clearly needed, and is thus congruent with Ten's account. Ronald Dworkin has attempted to afford such an account in terms of the exclusion of external preferences from the utilitarian calculation. See R. Dworkin, Taking Rights Seriously 22339 (1977). But this account begs many important questions. See H. L. A. Hart, "Between Utility and Rights," in The Idea of Freedom, ed. Alan Ryan (1979) at 86-97; V. Haksar, Equality, Liberty, and Perfectionism 258-69 (1979). In particular, it assumes some nonutilitarian form of argument for excluding such preferences. The account here given supplies the kind of nonutilitarian argument which is needed. (back)

47. See text accompanying note 1 supra. (back)

48. See J. Rawls, A Theory of Justice (1971). (back)

49. See A. Gewirth, Reason and Morality (1978). (back)

50. See Bentham, "Anarchical Fallacies," supra note 17. (back)

51. For an elaboration of this idea, see D. Richards, A Theory of Reasons for Action 6568 (1971) [hereinafter dted as D. Richards, Reasons for Action]. (back)

52. Frankfurt, "Freedom of the Will and the Concept of a Person," 68 J. Phil. 5, 6 (1971). For related accounts, see Benn, "Freedom, Autonomy and the Concept of a Person," 1976 Proc. Aristotelian Soc'y 10930; Dworkin, "Autonomy and Behavior Control," 6 Hastings Center Rep. 23 (1976); Dworkin, "Acting Freely," 4 Nous 367 (1970); Richards, "Rights and Autonomy," Ethics, October 1981; Watson, "Free Agency," 72 J. Phil. 205 (1975). (back)

53. Frankfurt, supra note 52, at 7. (back)

54. For an account of the relation of the person to rational choice, including choices of these kinds, see D. Richards, Reasons for Action, supra note 51, at ch. 3. (back)

55. For an account of the bases for these personal emotions, see id. at 25(}67. (back)

56. Foundations, supra note 1 at 51-52. See also Rawls, "A Kantian Conception of Equality," Cambridge Rev. Feb. i975, at 94; Rawls, "Kantian Constructivism in Moral Theory," 77 J. Phil. 515, 535-54 (1980). (back)

57. Foundations, supra note 1, at 53. (back)

58. See R. Dworkin, supra note 46, at 150. (back)

59. See A. Gewirth, supra note 49. (back)

60. See J. Rawls, supra note 42. (back)

61. See J. Mill, Utilitaruanism 76-79 (1957) (1st ed. London 1863). (back)

62. See id. at 73. (back)

63. See Williams, "A Critique of Utilitarianism," in J. Smart & B. Williams, Utilitarianism For and Against 77 (1973). (back)

64. 1. Kant, Foundations, supra note 1, at 59-64. (back)

65. J. Rawls, supra note 43 at 22-27. (back)

66. A. Gewirth, supra note 49, at 20>01. (back)

67. R. Dworkin, supra note 46, at 90-94, 188-92. (back)

68. The majoritarian appeal in Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," 7 Harv. L. Rev. 129 (1893), is implicitly utilitarian, as are Bickel's later works, A. Bickel, The Morality of Consent (1975); A. Bickel, The Supreme Court and the Idea of Progress (1970). (back)

69. See generally L. Hand, The Bill of Rights (1958). Compare A. Bickel, The Supreme Court and the Idea of Progress, supra note 68, in which a value skepticism similar to Hand's leads to a critique of moral reform through constitutional adjudication. Moral reflection and reform in the light of principles are to be replaced by unconscious moral historicism. Id. at 174-75. These ideas represent a significant retreat from Bickel's earlier work. See A. Bickel, The Least Dangerous Branch (1962). Value skepticism and utilitarianism are often inextricably intertwined in the work of these theorists. The idea, invoked seminally by Holmes, appears to be that one is skeptical of any nonutilitarian ideas but that utilitarian ideas are to be invoked in any proper analysis of the law. For the latter, see O. W. Holmes, The Common Law (2d ed. 1963). For a good statement of Holmes's value skepticism as a theory of the first amendment, see his dissent in Akrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., dissenting). See also his famous dissenting observation, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). (back)

70. Kant did not expressly invoke a contractarian model in the way Locke and Rousseau did, but he clearly suggested it. See Kant, supra note 1. For Locke, see Locke, supra note 1. For Rousseau, see Rousseau, supra note 1. (back)

71. J. Rawls, supra note 48 at 11-22. See also D. Richards, Reasons for Action, supra note 61, at 75-91. (back)

72. J. Rawls, supra note 48, at 11-22. (back)

73. If there were goods in abundant superfluity or if people were more willing to sacrifice their interests for the good of others, the need for a moral system might be significantly different or even nonexistent. For David Hume's remarkable discussion of the conditions of moderate scarcity, see D. Hume, A Treatise of Human Nature bk III, pt. 2, § 11 (London 1739), reprinted in Society, Law and Morality 307-19 (F. Olafson ed. 1961). See also J. Rawls, supra note 48, at 128. (back)

74. See J. Rawls, supra note 48, at 150-61. (back)

75. Rawls describes these general goods as "things which it is supposed a rational man wants whatever else he wants." Id. at 92. The notion of rationality considered here is developed in D. Richards, Reasons for Action, supra note 57, at 27-48, and J. Rawls, supra note 48, at 407-16. The general view of the good is discussed in J. Rawls, supra note 49, at 395-452, and in D. Richards, Reasons for Action, supra note 51, at 286-91. (back)

76. For the notion of a life plan, see C. Fried, An Anatomy of Values 97-101, 155-82 (1970); J. Rawls, supra note 48 at 407-16; D. Richards, Reasons for Action, supra note 51, at 27-48, 63-74. (back)

77. J. Rawls, supra note 48 at 92. See also Richards, "Equal Opportunity and School Financing: Towards a Moral Theory of Constitutional Adjudication," U. Chi. L. Rev. 32, 41-49 (1973). (back)

78. J. Rawls, supra note 48 at 433, 440-46. (back)

79. See D. Richards, Reasons for Action, supra note 51, at 257, 265-68; R. White, Ego and Reality in Psychoanalytic Theory (1963). (back)

80. In Rawls' terminology, self-respect is "the most important primary good." V. J. Rawls, supra note 48 at 440. See also id. at 178 80. (back)

81. Dworkin, "Liberalism," in Public and Private Morality 113 43 (S. Hampshire ed. 1978). (back)

82. In later elaborations of his theory, Rawls has laid great stress on the primacy of the argument for religious toleration as the paradigm for his argument. See Rawls, "Fairness to Goodness," 84 Phil. Rev. 536, 539 40, 542-43 (1975); Rawls, "Reply to Alexander and Musgrave," 88 Q. J. Econ. 633, 636-37 (1974). The self-conscious primacy of religious toleration in Rawls' theory is a striking correlate to the place of the free exercise and anti-establishment clauses of the first amendment. See also Rawls, "Kantian Constructivism in Moral Theory", supra note 56, at 539-40. (back)

83. A. Gewirth, supra note 49, at 48-198. (back)

84. J. Rawls, supra note 48, at 30, 40. (back)

85. A. Gewirth, supra note 49, at 108-09. See also id. at 331. (back)

86. See id. at 199 365; Gewirth, "The Basis and Content of Human Rights," 13 Ga. L. Rev. 1143 (1979). (back)

87. For a contractarian derivation of such rights, see D. Richards, Reasons for Action, supra note 51, at 92-195. (back)

88. See id. at 96-106. (back)

89. See, e.g., Butler, "Upon Resentment," in Fifteen Sermons at the Rolls Chapel 102 (1913); J. Feinberg, "The Expressive Function of Punishment," in Doing and Deserving 95-118 (1970); Hart, "The Aims of the Criminal Law," 23 Law & Contemp. Prob. 401 (1958); F. Stephen, "Punishment and Public Morality," in 2 A History of the Criminal Law of England 30-37, 90-93 (1883). (back)

90. See discussion in Chapter 2, infra. (back)

91. See D. Richards, Reasons for Action, supra note 51, at 92-195. (back)

92. See note 86 & accompanying text supra. (back)

93. See note 88 & accompanying text supra. (back)

94. See D. Richard, Reasons for Action, supra note 51, at 92-95, 176-95. (back)

95. Id. at 27-175. See also id. at 92-95. (back)

96. Id. at 176. (back)

97. Id. at 185. (back)

98. Id. at 189. (back)

99. Id. at 192. (back)

100. Id. at 107-47. See also J. Rawls, supra note 48, at 195-394. (back)

101. D. Richards, Reasons for Action, supra note 51 at 148 75. (back)

102. For attempts to formulate such complex principles which appear broadly convergent in substantive requirements, see id. at 8-10; A. Gewirth, supra note 49, at 199365. (back)

103. D. Richards, Reasons for Action, supra note 51, at 196-211. (back)

104. I discuss these principles at greater length in Richards, "Human Rights," supra note 3, at 1416-20. (back)

105. See id. at 1428 34. (back)

106. See id. at 1418, 1442 45. (back)

107. See id. at 1418-19, 1442 45. (back)

108. J.-J. Rousseau, La Nouvelle Heloise 264 a H. McDowell trans. 1968) (1st ed. Paris 1761). (back)

109. French Declaration of the Rights of Man and of Citizens art. IV. (back)

110. See generally D. Richards, Reasons for Action, supra note 51, at 176-85. For a similar formulation, see Brandt, "A Moral Principle About Killing," in Beneficent Euthanasia 106 14 (M. Kohl ed. 1975). (back)

111. The condition, that actions required by a principle should not call for substantial sacrifices of personal interests (for example, death, ill health, or penury), is a central reason that duties or obligations may be coercively enforced; otherwise, justifiable coercion would never be agreed to. Cf. D. Richards, Reasons for Action, supra note 51, at 177. (back)

112. Self-defense is permitted because the agent would be unjustly harmed unless harm were used in defense. See generally id. at 181; Richards, "Human Rights and Criminal Law," supra note 3, at 1435-36. See also C. Fried, Right and Wrong 42-53 (1978). In cases of just necessity, harm is inflicted only as a way of fairly avoiding greater harm. See Richards, "Human Rights and Criminal Law," supra note 3, at 143739. In cases of duress, the agent is threatened with harm that a reasonable person could not resist. See id. at 1431-32. (back)

113. Cf. D. Richards, Reasons for Action, supra note 51 at 180. Even masochistic pleasure may, in some cases, be regarded as a good not forbidden by nonmaleficence. Cf. id. at 178. (back)

114. See generally Brandt, VA Moral Principle About Killing," supra note 110, see also Brandt, "The Morality and Rationality of Suidde,8 in Ethical Issues in Death and Dying 122 (T. Beauchamp & S. Perlin eds. 1978). (back)

115. Joel Feinberg has discussed the question whether the murderer harms his victim. See Feinberg, "Harm and Self-lnterest," in Law, Morality and Society 285, 299 (P. Hacker & J. Raz eds. 1977). (back)

116. See generally Silverstein, "The Evil of Death," 77 l. Phil. 401, 405-10 (1980). (back)

117. J. S. Mill, supra note 11, at 90-91. (back)

118. See chapter 2, infra; see also Richards, "Human Rights and Moral Ideals: An Essay on the Moral Theory of Liberalism," 5 Soc. Theory and Prac. 461 (1979) [hereinafter cited as Richards, "Human Rights and Moral Ideals"]. (back)

119. See generally Richards, "Human Rights and Moral Ideals," supra note 118 at 472-75. (back)

120. See J. S. Mill, supra note 11 at 9-10. (back)

121. See discussions hereof in Chapters 2 and 3, infra. (back)

122. See Chapters 2-5, infra. (back)