Politics is About the Grievance

xxx leg05016 October 4, 2005 16:35

Legal Theory, 11 (2005), 293–323. Printed in the United States of AmericaPublished by Cambridge University Press 0361-6843/05 $12.00 + 00

POLITICS IS ABOUTTHE GRIEVANCE:Feinberg on the Legal Enforcement of Morals

Gerald J. PostemaUniversity of North Carolina at Chapel Hill

Poetry is about the grief; politics is about the grievance.—Robert Frost

The ruling passing in man is . . . a gregarious instinct to keeptogether by minding each others’ business. —Robert Frost

Evil, when we are made to face it, rarely leaves us indifferent; numb andstruck dumb, perhaps, but not indifferent. Evil is not merely unwelcome—when the bee stings, when the dog bites, when we’re feeling sad—it is notmerely regrettable. Evil always demands attention, action, response, rejec-tion. Some evils, of course, can be coped with only in thought, although inits “pure” form, evil defies understanding; it is unintelligible.1 We can try toexplain evils, try somehow to fit them into our experience. This is the taskof theodicy, perhaps philosophy. Other evils, especially those fashioned byhuman hands, demand our condemnation, unyielding opposition, and vig-orous efforts at prevention and reparation. This, we think, is the task of law.

However, when evil hits home, and even when we view it with fear oroutrage from a distance, it can blur moral distinctions, obliterate nuance,and blind us to what is our proper business.2 To be sure, all evils are seriouslyto be regretted, but not all evils are the proper business of law, even whenlaw has the means to do something about them. This, in broad strokes, isthe liberal position on the legal enforcement of morals that Joel Feinbergarticulates and defends with integrity and insight in his magisterial TheMoral Limits of the Criminal Law. When it comes to the political morality ofthe criminal law—the public morality legitimately enacted and enforced byour criminal law—Feinberg echoes Frost: it’s all about the grievance.

Like Mill, whom he follows, Feinberg articulates this view in great andgreatly illuminating detail, but he spends much less time directly defendingit. The project of this essay is to see how far Feinberg’s own resources cantake us towards a full and satisfying defense of his liberal position.

1. JOEL FEINBERG, PROBLEMS AT THE ROOTS OF LAW (2003), at 142–144.2. In his essay “Evil” (in supra note 1) Feinberg explores in detail the blurring of moral

categories caused by our experience or observation of evil.

293

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35

294 GERALD J. POSTEMA

I. VARIETIES OF EVIL

“The spirit of liberalism,” Feinberg writes, lies in its “concern forhumanity . . . limited only by its respect for autonomy.”3 The key elementin this moral outlook is not its exclusive focus on human good, even less ongood human beings, but rather, its focus on that which is good for human be-ings.4 It takes its cue from the needs, sufferings, interests, and self-fulfillmentof individual persons; and in individuals it vests personal sovereignty overa wide domain of thought and action in which they are central. This out-look is not subjectivist; rather, it takes as morally fundamental the claimspersons are entitled to make in their own names and for their own sakes. When-ever demands of morality in this domain are ignored or defied, there areassignable persons who are entitled to complain, “to voice grievances inprotest, and press for some sort of remedy or censure.”5 The morality ofFeinberg’s liberalism is “grievance morality.”6

In Feinberg’s view, grievance morality provides the only legitimate basisfor the criminal law, but this is not because he thinks it defines the outerboundaries of morality. He thinks it is only one department of morality. Un-like some defenders of a liberal position on the enforcement of morals,Feinberg does not dismiss “free-floating evils” (evils that are not anchoredto grievance evils) as nonevils, irrelevant from a moral point of view.7 Nev-ertheless, his recognition of the existence of free-floating evils is by his ownadmission “grudging.”8 Some alleged free-floating evils—for example, thoseassociated with sexuality—simply do not exist, he argues,9 and others—thegradual loss of language or a way of life—are obscured and distorted by amist of sentimentality and do not deserve serious moral attention.10 Othersuch evils, although they survive a clear-eyed critical survey, still lack signif-icant moral weight when put on the scales opposite grievance evils. Whilethere may be moral evils beyond the pale of grievance morality, rarely, inFeinberg’s view, will they rival the moral demands of personal autonomy,or individual projects, or resources necessary for human fulfillment.11 Theymay be genuine moral evils, and doing or promoting them may be genuine

3. JOEL FEINBERG, HARMLESS WRONGDOING (1988), at 328.4. JOEL FEINBERG, RIGHTS, JUSTICE AND THE BOUNDS OF LIBERTY (1980), at 165–167. Feinberg

acknowledged that there are rights-bearers other than human individuals (at 159–206): someanimals, e.g., insofar as they have morally important interests, and certain communities orcollectivities. But he believed that the moral claims these rights make on us tend to be weaker,or at least more limited in scope, than individual human rights, which are at the center of thisconception.

5. FEINBERG, supra note 3, at 79.6. Id. at 79, 154.7. Id. at 66.8. Id. at 125.9. Id. at 125.

10. Id. at 80.11. Id. at 66–67.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35

Politics is about the Grievance: 295

moral wrongs, in his view, but rarely will they be appropriate grounds fordeploying the criminal law to eradicate or control them.

Thus it is important to recognize that Feinberg’s debate with his oppo-nents over the criminal enforcement of morals is a substantive debate overhow much or what parts of morality our political societies may legitimatelyenact and enforce. Any liberty-limiting principle, whether a conservativelegal moralist principle or Mill’s liberal harm principle, he argues, “is aprinciple enforcing some segment of some morality” because the crimi-nal law is “an instrument for creating and reinforcing moral consensus.”The liberty-limiting principles he proposes are also “moralistic principle[s],aimed at determining the moral values that may properly be enforced bythe morality-shaping apparatus of criminal law.”12 The question before us,writes Feinberg, is “which judgments on behavior may rightly receive thestamp of moral certification from the criminal law, not whether in apply-ing that stamp the criminal law is enforcing some moral judgments orother.”13

II. VARIETIES OF LEGAL MORALISM

We need to clarify this question a bit. Lord Devlin correctly distinguishestwo critical questions: (1) “If a society has the right to pass judgment [on allmatters of morals], has it also the right to use the weapon of law to enforceit?” (2) If it does have that right, when “ought it to use that weapon . . . [and]on what principles?”14 The first question concerns whether a political com-munity is entitled or has the moral standing to use the criminal law to enforce(perhaps some portion of) morality; the second concerns the proper ex-ercise of that entitlement. According to Mill, the first concerns society’sjurisdiction, the second, society’s justification.15 Answering the first and morefundamental question is the following thesis:

Moral Entitlement Thesis (MET): Political communities are entitled to use thecriminal law to enforce moral values or principles as they see them.

Nearly all parties to the debate assume a positive answer to it. The questionfor liberals, Feinberg writes, “is not whether society can pass judgmentin all matters of morals, but rather which matters of morals are its properbusiness.”16 Like Devlin, Feinberg assumes that the moral entitlement thesisin some version is true. He disagreed about its scope, not its truth. Those who

12. Id. at 13.13. Id. at 13.14. PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965), at 7–8.15. J.M. MILL, ON LIBERTY (1969), ch. IV, para. 3.16. FEINBERG, supra note 3, at 135.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


side with Devlin—including some who are inclined towards liberalism17—accept:

Global Legal Moralism: A political community is entitled in principle to enactand enforce any moral value or principle.

Since this is a principle of jurisdiction, not justification, so global legalmoralists do not tell us anything yet about what forms of social behavior arejustifiably punished by law or even what principles of political morality carrythe greatest weight in answering such questions. They merely claim thatQ1

political communities are entitled to consider and weigh any and all suchprinciples. Clearly, Mill rejects this view; yet he accepts the moral entitlementthesis, albeit in a more restricted form. He, and Feinberg following him,embrace:

Restricted Legal Moralism: A political community is entitled to enact and enforcesome but not all moral values or principles.

Mill, of course, seeks to restrict this entitlement to considerations ofharm to others (and, possibly, offense of certain kinds). Since Mill, thishas been the core of a distinctive liberal view on the legal enforcement ofmorals. We should note, however, that it is possible to hold both global legalmoralism and something like Mill’s restriction of the state’s entitlement toenact and enforce moral standards to matters of harm to others. This is thecase for those liberals who believe that morality is restricted to matters ofbehavior imposing or threatening harm to persons other than the agent. Ona harm-centered view of morality, the harm-restricted entitlement to enforcemorality is consistent with global legal moralism. On this view, the disputebetween liberals and their conservative opponents is not over the scopeof the entitlement of a political community to enact and enforce moralitybut, rather, a more fundamental dispute over the scope of morality itself.This is not Feinberg’s liberalism. Feinberg’s liberal embraces restricted legalmoralism, and that thesis limits a political community’s entitlement to someproper subset of genuine moral principles, values, or concerns.

Understood in this way, we can see that Feinberg endorses the restrictedlegal moralist thesis in a specific version, namely:

Grievance Legal Moralism: A political community is entitled to enact and enforceonly grievance morality.

This is a form of the restricted thesis because, as I note above, he believesthat grievance morality is just one department of morality. However, we

17. See, e.g., Joseph Raz, The Morality of Freedom (1986); Gerald Dworkin, Devlin Was Right:Law and the Enforcement of Morality, 40 WM & MARY L. REV. 927–946 (1999).

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


must refine this one step further, for Feinberg holds that the contoursof grievance morality are defined by the harm and offense principles as hemeticulously articulated them. Thus he gives his liberalism the precise shapeof grievance legal moralism as defined by the harm and offense principles.

Thus the pivotal point of disagreement between Feinberg’s liberals andtheir opponents (liberal-minded or conservative) concerns the scope of le-gal moralism; it is not a disagreement about the feasibility, cost-effectiveness,or ultimate justification of criminalization of any particular form of socialbehavior. Feinberg, at least early on, accepts the view that moral argumentsfor and against use of the criminal law must pass through a kind of fil-ter:18 political communities have moral standing to consider only thosearguments that meet the test of the harm and offense principles.

This way of setting up the enforcement-of-morals debate forces us toask two questions of the Feinberg’s liberal that are rarely asked: (1) Whyaccept the moral entitlement thesis? Feinberg, like Mill before him, thinksit is intuitively obvious that MET is true, and since it is common groundbetween him and his conservative opponents, he does not feel the need todefend it directly. However, different views of the ground of this key thesis arelikely to influence conclusions we draw regarding its scope, so there is reasonto explore the case for MET. (2) Since there is logical space for a number ofalternative versions of restricted legal moralism, why restrict it to grievancemorality, and in particular to the harm and offense principles? Answersto both questions, I believe, rest on the view that the morality enforced ispublic morality.19 But this is not Feinberg’s argument. A somewhat differentargument for the moral entitlement thesis in general and grievance legalmoralism in particular is available in resources Feinberg provides.

However, before we can begin uncovering this argument, we must addresstwo problems about Feinberg’s view of the relation of the harm and offenseprinciples to restricted legal moralism. First, although grievance morality isthe source of Feinberg’s liberalism, the liberal position on the enforcementof morals defined by the harm and offense principles is in fact narrower thangrievance morality would yield. I argue that Feinberg’s strongest position isone that takes grievance morality as its core, rather than the union of theharm and offense principles. Second, in the final volume of Moral Limits,Feinberg’s commitment to a grievance morality version of restricted legalmoralism wavers in the face to two powerful counterexamples —Kristol’sgladiatorial contest and Parfit’s malicious conception example.20 I arguethat he should have resisted the temptation to weaken his liberal positionand that he can deal with these challenges adequately while remainingcommitted to his original understanding of grievance legal moralism.

18. JONATHAN SCHONSHECK, ON CRIMINALIZATION (1994), ch. 3.19. Gerald Postema, Public Faces—Private Places: Liberalism and the Enforcement of Morality, in

MORALITY, WORLDVIEW, AND LAW (A.W. Musschenga, B. Voorzanger, & A. Soeteman eds., 1992).20. FEINBERG, supra note 3, at 27–33, 128–33, 325–31.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


III. HARM, OFFENSE, AND GRIEVANCE MORALITY

The “liberal position” on the moral limits of the criminal law, writesFeinberg, holds that “the harm and offense principles, duly clarified andqualified, between them exhaust the class of good reasons for criminal pro-hibitions.”21 Read as an articulation of restricted legal moralism, this is to saythat a political community is entitled only to enforce the harm and offenseprinciples. According to Feinberg, this entitlement is grounded in grievancemorality, but if we take this source seriously, we get a somewhat wider and, Ibelieve, more plausible liberal position. Feinberg excludes from the rangeof “reasons for criminal prohibitions” certain harmless wrongdoings whichhe has good reason to include and which are included in grievance legalmoralism. My argument in this section is offered in support of a friendlyamendment to Feinberg’s account. I draw my arguments entirely from hisown discussion of some otherwise troubling cases.

Feinberg takes great care to construct a notion of harm suitable for use inhis harm principle. On this view, a political community is always entitled (butnot always thereby justified) to limit individual liberty to prevent wrongfulharming. The notion of wrongful harming lies at the intersection of twodistinct notions: (1) that of the harmed condition of a person, or harmsimpliciter ; and (2) wrongs done by one person to another that are neitherexcused nor justified. Harm simpliciter is a serious setback of an individual’slegitimate (primarily welfare) interests and a person’s interests are set backonly when the individual is worse off, all of her interests being taken togetherand on balance. This harm provides a good reason for criminal interventionQ2

only when it is the upshot of an action that wrongs the person who suffersthe setback and the wrongful action is inexcusable and morally indefensible.Antony Duff correctly points out that it is reasonable to drop the last clauseQ3

since it confuses eligibility of action-types for criminal prohibition withcertain defenses that might be available to defendants (namely, certainexcuses or positive justifications).22 Feinberg’s guiding idea is that actionsare eligible for criminal-law attention under the harm principle only if theyare wrongs done to the victim that set back the victim’s legitimate interests.Eligible harms are consequent upon violations of what individuals owe toeach other, that is, violations of the victims’ rights. Furthermore, Feinberginsists on a strong version of the volenti principle, such that A does no wrongto B if B freely consents to A’s action.

Notice that this notion excludes several kinds of actions. None of thefollowing are wrongful harms that figure in the harm principle: (1) actionsthat set back interests that are not legitimate; (2) actions that set back someof a person’s legitimate interests but promote other interests of the personso that on balance the person is not harmed; (3) actions that adversely

21. JOEL FEINBERG, HARM TO OTHERS (1984), at 26; FEINBERG, supra note 3, at xix.22. R.A. Duff, Harms and Wrongs, 5 BUFF. CRIM. L. REV. 13–45 (2001), at 19–20.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


affect a person’s interests on balance and are morally wrong but are notwrongs done to the individual suffering the setback, either because (a)they are impersonal wrongs or (b) the victim freely consented to the action;(4) wrongs done to a person that do not adversely affect the victim’s interestsand may even benefit her. We might regard actions of each of these kindsas objectionable to some degree (at least by the victim), but insofar as theyare evils, they are not grievance evils, because they are not wrongs done toanyone, either because no harming was done or because the harming wasnot a wronging of the victim. They are, or are akin to, free-floating evils.

The first two groups of actions are not problematic for our purposes,but the last two are more troubling, especially 3(b) and 4. Exploitation andother cases of infringements of waived rights are examples of group 3(b);cases of beneficial trespass, burglaries that leave everything exactly in place,and possibly some cases of rape where the victim is under anesthesia and no Q4

physical injury is suffered are possible examples of group 4. In Feinberg’sview, group 3(b) comprises cases of harms simpliciter that are not wrongs tothe victim—wrongless harms, we might say, while group 4 comprises cases ofharmless personal wrongs, that is, harmless infringements of rights.

I believe Feinberg should permit both groups of cases as reasonable tar-gets for criminal prohibition. I return to consider below a special case fallinginto group 3(b).23 I argue that there is good reason to take at least somecases in that group as grievance evils—personal wrongs—despite the freeconsent of the victim. This, of course, will require a significant adjustment ofFeinberg’s view, and one might find resistance to the suggested adjustmentreasonable. Here I consider briefly group 4, harmless personal wrongs. I re-gard my suggestion that these cases fall within the pale of grievance moralityas an entirely friendly amendment.

The case for this friendly amendment rests on two considerations. First,they are appropriately analogous to matters of serious personal offense.With some plausibility, Feinberg insists that no plausible liberal positioncan entirely ignore significant cases of offense—either major nuisance ormatters of profound offense. He carefully circumscribes his offense princi-ple, of course, but recognizes that even if no serious setback of legitimateinterests is caused, certain kinds of offensive behavior are properly regardednot merely as a free-floating evil but as wrongs done to the victims—offenseevils directly suffered by specific persons. “Their victims are wronged eventhough they are not harmed.”24 Thus, by adding the offense principle to theliberal position, Feinberg’s moralism already admits some harmless wrong-doings. A similar case can be made for the harmless wrongdoings of group 4.

Second, Feinberg also comes to see (albeit in passing) the relevance andforce of arguments for prohibitions of paternalistic interferences by private

23. See the discussion below of the “trouble case” of Irving Kristol’s gladiatorial contest.24. JOEL FEINBERG, OFFENSE TO OTHERS (1985), at 25, 49.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


parties.25 He has in mind cases in which individuals forcibly prevent othersfrom sacrificing their lives or treasure for the good of third parties. Such anintervention may be on the whole beneficial to the person constrained but isstill a wrongful invasion of the sovereign domain of the victim. The argumentfor prohibiting such paternalistic interventions, according to Feinberg, isnot that the liberty interest of the victim outweighs all her other interestsbut, rather, that the intervention is a violation of her autonomy, somethingthat cannot be traded off with benefits to other interests. This argumentflows from the source of grievance morality as Feinberg conceives it, andso it represents not a fundamental revision of his liberal position26 but anatural extension and deepening of it.

Thus, even if we have problems accepting Feinberg’s offense principle,we can acknowledge a strong reason from within his understanding ofgrievance morality to acknowledge harmless personal wrongdoing of cate-gory 4 above. In cases of beneficial trespass, for example, not only are theactions wrong but they are wrongs done to the victim, just as in cases of pa-ternalistic interference. The action itself, not anything consequent upon it,is the wrong, and that wrong is sufficient reason to consider it eligible forcriminal prohibition. In cases like these, “no harm, no foul” is out of place.The wrong done to the victim clearly funds a grievance on her part. Thus itis seriously misleading to treat cases of harmless violations of rights as akinto free-floating evils. On the contrary, the evils in view are securely anchoredto the sakes of the victims, even if they are not hooked into their legitimatewelfare interests as Feinberg understands them. If this is right, we mightoffer as a friendly amendment to replace his legal moralism restricted tothe harm and offense principles with grievance legal moralism.

However, friendly amendments are rarely costless. The price of plausibilityin this case is that one is left wondering just how central harm simpliciter—setbacks of interest on balance—are for grievance moralism. Feinberg’s lib-eral is faced with a choice, roughly speaking, between Millian and Kantianways of filling out grievance legal moralism. Following Mill, we could treatsetbacks of legitimate interests as within the jurisdiction of political societyeven if the harming actions do no wrong. For example, if my pizza parlorloses in competition with your pizza palace, my legitimate interests arguablyhave been adversely affected, although no wrong has been done to me; yetwe might think it not unreasonable to consider regulating competition oreconomic activity more generally as a legitimate form of government activ-ity. This is not to say, of course, that government interference is always oreven usually justified, but only that such matters fall within the government’sjurisdiction. Hence, following Mill’s suggestion, there is some reason to addnonwrongful harmings to the jurisdiction mix. Alternatively, drawing inspi-ration from Kant, one might argue that the central question in this context

25. FEINBERG, supra note 21, at 78; Duff, supra note 22, at 28.26. pace Duff, supra note 22, at 30.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


is whether society is ever entitled to use coercion and hence to restrict theautonomy of individuals. One might argue that the state is entitled to usecoercion only in support of a structure of rights that protect equal and re-ciprocal limits on liberty. On this view, grievance legal moralism is properlyrestricted to enforcement of violations of rights that figure in that structure,regardless of whether legitimate interests are set back.

I am not sure which way Feinberg would have gone, although through-out his writing his sympathies lie more clearly with Mill than Kant. It isclear, however, that this choice should be determined by our reasons forthinking that society is entitled to enforce grievance morality. That is, theprecise shape of grievance legal moralism depends on the arguments for themoral entitlement thesis. This gives us further reason for exploring thesearguments.

IV. THE STATUS OF THE HARM AND OFFENSE PRINCIPLES

Feinberg substantially changed his view regarding the status of his harm andoffense principles relative to the global legal moralist principle in the courseof writing The Moral Limits of the Criminal Law. In its initial volumes, Feinbergseeks to determine the legitimacy of the exercise of political power.27 “Liberty-limiting principles” state reasons that a political community could legitimatelyuse to ground proposals to interfere with individual liberty. While legalmoralism in its global version treats any recognizable and valid moral reasonas a legitimate ground, liberalism is seen as restricting legal moralism toreasons recognized by the harm and offense principles. Liberalism alsorejects paternalism, which recognizes harm to the agent as a legitimateground of interference with the agent’s liberty. On this view, the harm andoffense principles alone determine the political community’s legitimate“business”—what falls within the scope of its authorized concern.28

In the concluding volume, however, Feinberg backs off this view, aban-doning the thesis that the harm and offense principles exhaust the class ofmorally relevant grounds for criminal law;29 harmless immoralities are nolonger always irrelevant to the debate over criminalization of behavior. Hereplaces talk of “legitimacy” of reasons with talk of their “goodness.” Non-grievance evils (both free-floating and paternalistic) are regarded as relevantto questions of criminal prohibition of conduct that causes or constitutesthem, he maintains; there is “room to entertain” them but, he adds, they arehardly ever good reasons and never decisive reasons for doing so. In contrast,he claims that prevention of harm and offense are always good and oftendecisive reasons for interference.30 He concludes that in (almost) every

27. FEINBERG, supra note 21, at 3.28. Id. at 6–7.29. FEINBERG, supra note 3, at 321–323.30. Id. at 323.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


case, it would be mistake for a political community to rely on free-floatingevils or harm to self as grounds for criminal legislation.

But his view of the nature and basis of this exclusion is very different in theconcluding volume. They have standing in public deliberations about thescope and direction of criminal legislation, but in most cases we can dismissthem as insufficient because they almost always lack the moral weight tocontend against considerations of personal autonomy and individual inter-ests. Because considerations of grievance morality generally outweigh othermoral considerations when it comes to enforcing morality, we can com-fortably reject global legal moralism and embrace grievance legal moral-ism, subject to those few exceptions in which a free-floating evil presents amorally compelling case for criminal prohibition.

Feinberg makes this adjustment largely in response to two powerful coun-terexamples to the liberal position he defends in the earlier volumes of MoralLimits. The two counterexamples are: (1) the malicious conception case, sug-gested by Parfit, in which a woman intentionally or recklessly conceives achild knowing it will be condemned to a life of suffering and severe disabilitybut that is still in some sense worth living; and (2) Irving Kristol’s chillinggladiator contest in which volunteer gladiators fight to a gory death, urgedon by a ticket-holding crowd of thousands. These intuitively troubling caseschallenge the liberal claim that the moral considerations they bring force-fully to our attention must be filtered out of our public deliberations aboutwhether to prohibit and punish such behavior. It is a tribute to Feinberg’sintellectual integrity that when he was unable honestly to dismiss these rarecases of intuitively legitimate if not fully justified criminal interference, heQ5

moderated his earlier statement of the liberal position so as to recognizetheir force.

The theoretical price Feinberg was willing to pay to accommodate ourintuitions in these cases, however, was high. He did not merely weaken hisliberal position just enough to admit these very rare cases; he abandonedthe liberal project of drawing a line on a principled basis between thoseconsiderations that may ground criminal interference with individual libertyand those that may not. This is no merely marginal adjustment; it is a changethat goes to the heart of the liberal project as Feinberg (following Mill) andmany others have understood it. No longer may Feinberg’s liberal talk ofsociety’s jurisdiction being limited to grievance morality, for on Feinberg’saccount, all of morality falls within that jurisdiction, just as it does for theglobal legal moralist. Feinberg’s adjustment committed him, in effect, toglobal legal moralism.

He may disagree with others about the moral significance of nongrievanceevils, but that is a disagreement globalists have all along recognized. Thepoint has always been that resolving that disagreement is the only game intown. The liberal position Feinberg earlier defended sought to change thegame; his late shift in position put him back in the globalists’ game. Thisshift did not commit him to illiberal support for the intrusion of the criminal

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


law into our lives, of course, but then, nor is Devlin committed to such aview. Devlin just argues, with Feinberg’s agreement, it now appears, thatconsiderations of various kinds of free-floating evils cannot be ruled out ofdiscussion.

Devlin may be right after all; maybe liberal limits on the deployment of thecriminal law must be argued out publicly strictly on their merits. But I thinkFeinberg’s reasons for abandoning the project are not sufficient. The casefor a sharp distinction between the moral standing of a political communityto deploy the criminal law to enforce morality and the justification of theexercise of this title remains strong; we still need an argument for thecommunity’s standing to enforce morality. That argument will have a lot tosay about the scope of a community’s standing. Our intuitions in recalcitrantcases such as malicious conception and gladiatorial contests must feel thepressure of this argument. Moreover, I believe it is possible to account forthese two cases by means of principles of grievance morality—that is, I thinkthe evils on which they focus attention are not properly thought to be “free-floating” but can be shown to be genuine personal wrongs done to theintuitive victims. I make the case for this understanding of the recalcitrantcases below, but first I defend the sharp distinction between jurisdiction andjustification on which Feinberg’s original liberal position rested. Then I setout an argument, constructed from resources available in Moral Limits, forthe moral standing of political communities to enforce grievance morality.

V. STANDING

Fitzjames Stephen writes, “There are acts of wickedness so gross and out-rageous that . . . they must be prevented at any cost to the offender andpunished if they occur with exemplary severity.”31 If Stephen means to saythat such acts must be prevented and punished by anyone capable of doingso, then, although his sentiment is compelling, his reasoning is faulty. Themoral universe in which such evil is unhindered and unpunished, in whichwickedness not only prospers but is indulged with impunity, may seem rad-ically out of joint. Perhaps a better world would be one in which every evilis canceled by evil suffered on the part of the evildoer. This retributivistthought is not shared by all thoughtful people, of course, but even if weaccept it, we are not entitled by it to conclude that any individual or com-munity is deputized to bring the world closer to this retributivist ideal stateof affairs. Meting out good for good and evil for evil is precisely the kindof activity that calls for special moral authority, for a special moral standing.It is always an appropriate question to ask: What makes it your business tomete out good and evil?

31. JAMES FITZJAMES STEPHEN, LIBERTY, EQUALITY, AND FRATERNITY (1967), at 162; FEINBERG,supra note 3, at 44.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


Some philosophers find this hard to accept. Gerald Dworkin, for exam-ple, argues that the fact that an action is morally wrong is a reason for notdoing it and for criticizing and discouraging its performance by others.This, he claims, is enough to show that attempts by a political community,through its law, to condemn, forbid, and hence punish such actions are atleast appropriate responses, although they may be ill-advised and even unjusti-fied. “[B]ecause ‘wrongful’ implies ‘ought not to be done,’ the category ofimmoral acts establishes the same threshold for the legitimacy of state inter-ference as does the category of harmful or offensive acts.”32 This is simply aQ6

non sequitur. From the fact that an act ought not to be done, nothing followsas a matter of logic about anyone’s entitlement to take steps to prevent orpunish it, let alone that a political community or the government acting asits agent has such an entitlement. If we are inclined to draw any conclusion,we do so on the basis of some moral principle as yet unspecified. We stillneed an argument for the claim.

Joseph Raz makes an argument that appears, at least at first, to be similarto Dworkin’s. He claims that it is a logical point that the fact that an actionis good is reason (albeit not necessarily a conclusive one) to perform theaction, and that the fact that a state of affairs is good is a reason (albeit notnecessarily conclusive) to promote it.

[I]t does not make sense to say of a state of affairs that it is good but that fact isno reason whatsoever to do anything about it. If the value of our actions or oftheir consequences is no reason for action, then what can be such a reason?If there is a gap here, there is nothing to fill it.33

Again, this argument is unconvincing unless is it understood not as a logicalpoint but a substantive moral point. For from the fact that there is nothingto fill the gap between actions and one’s reasons for performing themother than the value of actions or their consequences, it does not followthat there never is a gap but only that when the gap is filled, it is filled withvalue in the way Raz describes. Of course, Raz goes on to support a versionof the doctrine of moral standing for holders of political authority (lawand government officials). On his view, from the fact that an evil can beprevented or a good promoted by an entity claiming authority it does notfollow that that entity has authority to proceed. That entity has authorityonly if the directives of the alleged authority enable ordinary people tocomply better with the reasons they have for acting than if they acted ontheir own judgments of what those reasons require of them. That is, the

32. Dworkin, supra note 17, at 943. Similarly, Feinberg took the “bare minimal case for legalmoralism” to be the following: “Since evils are, by definition, something to be regretted andprevented when possible, it seems to follow that the prevention of an evil, any evil, is always areason of some relevance, however slight, in support of criminal prohibition” (FEINBERG, supranote 3, at 37–38; see also 125).

33. Joseph Raz, Facing Up, 62 S. CAL. L. REV. 1153–1235 (1989), at 1230.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


authority of law in general (and a fortiori its authority to enact and enforcejudgments of morality) depends on demonstration of its possession of acertain kind of expertise. It is not for us here to assess Raz’s claim about thenormal justification for authority. What it shows, however, is that the allegedlogical link between an action’s being good and reasons to do it does notdirectly support law’s claim to moral authority.

So far I have tried to make a simple formal or logical point, but the thesisabout the need to establish the moral standing of a political community toenforce morality rests on the observation that the topography of moral lifeand moral reasoning is not flat or uniform but, rather, stratified in complexand subtle ways. While some moral reasons may apply to agents whereverthey find themselves, other moral reasons depend on an agent’s location.Reasons for action are often indexed to certain positions or roles.34 Theremay be powerful reasons to perform certain actions, but the reasons applyonly to certain agents. Others may appreciate the appropriateness or eventhe necessity of action while recognizing that they lack the moral authority todo so. A child misbehaving in the grocery store may need a firm disciplininghand, but as a stranger I have no right to take the child in hand, especiallyif her father is near by. She ought to be reined in, perhaps, but he is the oneto do it; it is none of my business.

One does not need any special standing to make moral judgments aboutthe behavior of others or even (within limits) to express them. But there isan important difference between making and expressing moral judgments,on the one hand, and holding a person to his duties, on the other. In fact,morality appears to be exceedingly tightfisted when it comes to distributingstanding to individuals to enact and enforce its dictates. Perhaps it is justand right that Pol Pot suffer for his sins, but it is not for you or me to inflictthat suffering, to exact that justice. In contrast, parents may be in a positionwith respect to their children to enforce the dictates of morality as they seeit because they have a special responsibility for their children’s moral nurture.That responsibility is accorded parents in the name of the good (moral andotherwise) of the children and not in the name of morality itself. In theworld of adult moral agents, individuals generally have no analogous claim.If this is true of individual moral agents, it is even more true of politicalcommunities. We cannot merely infer from the fact that some action orstate of affairs is evil that we as a political community have standing toprevent or punish it. This is true regardless of the gravity of the evil, forstanding is not a function of the weight of the reasons in question but ratherof the moral authority of agents to act on those reasons.

34. This is not the place to discuss whether all moral reasons are indexed in this way orwhether, on the contrary, some reasons are “agent-neutral” on at least one understanding ofthat term. It is enough for my purposes if we can agree that some reasons are indexed (“agent-relative”) and that it follows that we cannot infer from “this is evil” or “that is wrong” that “Imust prevent it” or “I may punish it.”

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


VI. FEINBERG’S ANTIPATERNALISM PRINCIPLE

Feinberg’s understanding of his antipaternalism principle illustrates thisrelationship between the evil of some state of affairs and a political com-munity’s reasons for taking action to prevent it.35 Feinberg’s principle restsultimately on a strong right of personal autonomy, understood as a right ofabsolute personal sovereignty over a relatively well-defined territory. Out ofrespect for individual autonomy, the liberal principle prohibits interferencewith voluntarily incurred risks or potential harms if they are truly consentedto. Within this area, the agent’s will is sovereign. Thus, even when an in-dividual risks very great loss, injury, or even death, these evils are not laidon the scales opposite the good of exercising his autonomy when we delib-erate about whether the law should intervene. Rather, says Feinberg, “thevoluntarily risked injury is treated by the liberal as if it were no evil at all.”36

Feinberg does not minimize in any way the evil of injury or death. Hispoint is, rather, that because “sovereignty is not the kind of value that canbe weighed against particular evils on a common scale . . . no set of dangersto the actor himself could outweigh his right to determine his own lotwithin the proper boundaries of his sovereign domain.”37 The idea is notthat autonomy is so important that every other value pales in significancebut, rather, that the only proper way to respect autonomy is to respect asphere of personal decisions within which an agent’s own will and choicesare sovereign: “For to say that I am sovereign over my bodily territory is tosay that I, and I alone, decide (so long as I am capable of deciding) whatgoes on there. My authority is a discretionary competence, an authority tochoose and make decisions.”38 Other persons might be in a position to actfor the sake of or on behalf of a person, but respect for her autonomy requiresthat we acknowledge that her “behalf” always remains within her sovereigncontrol.

Feinberg’s argument correctly assumes that the appropriate response toa given value depends on the nature of the value. The appropriate mannerof response to the value of autonomy is to recognize and respect a kindof disability, a lack of a certain kind of power or authority, on the part ofeveryone but the agent herself to act on considerations of her own good.Respect for autonomy, according to Feinberg, entails that where the mostimportant matters of life are concerned, no one other than the personwhose life is in question has standing to intervene (without that person’sleave). Whether this is so—that is, whether there is such a protected zoneof personal sovereignty—depends on the nature of the value of personalautonomy and on the most appropriate way for that value to be respected,protected, and promoted. The denial of standing, in matters of fundamental

35. JOEL FEINBERG, HARM TO SELF (1986), chs. 18–19.36. FEINBERG, supra note 3, at 6.37. Id. at 6; see also FEINBERG, supra note 35, at 53, 93–94.38. FEINBERG, supra note 35, at 53.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


personal concern, to all but the agent involved (extended to loved ones,perhaps) is the product of a substantive moral argument, albeit one at atheoretically fundamental level.

The question for us now is whether an analogous argument can be con-structed for grievance legal moralism.39 There is reason to hope that re-sources for such an argument are available in Feinberg’s understanding ofthe notion of grievance.

VII. GRIEVANCE MORALITY AND MORAL STANDING

In Feinberg’s view, grievance evils—harms and personal offense—are a spe-cial category of evils marked by their distinctive nature and their moral im-portance. Indeed, it is in virtue of their nature that they have their relativelygreat moral weight. In the following passages, Feinberg draws implicationsregarding the standing of criminal law to enforce grievance morality fromthe nature of these evils:

When a person has been harmed in one of his vital interests, or even whenhe has been seriously inconvenienced to his great annoyance [i.e., offended],a wrong has been done to him; he is entitled to complain; he has a grievance tovoice; he is the victim of injustice; he can demand protection against recurrences;he may deserve compensation for his loses. But no one is entitled to complainin the same way when a free-floating evil is produced by another’s action.40

This characterization applies not only to proper harms but also to seriousoffense, according to Feinberg. “Offense,” he writes, “belongs to that classof evils . . . that are directly suffered by specific persons who then [are ina position to] voice real grievances. . . . Their victims are wronged eventhough they are not harmed.” And he concluded, “[f]or that reason alone,it is morally legitimate for the criminal law to be concerned with theirregulation.”41

Grievance evils, Feinberg argues, are wrongs done to specific persons.Grievance evils are of immediate personal concern to them; the evils di-rectly affect their own good and interests, goods in which they have a directand personal stake. These goods ground rights, and these rights imply dutieson the part of others to respect and even promote the goods and intereststhat the rights are designed to protect. More important for present pur-poses, the rights also accord certain special moral powers to the possessors of

39. Note that the aim of the discussion in this section is to identify a certain form ofargument, not to endorse Feinberg’s antipaternalism. As we shall see below, there may bereasons from within grievance morality to accept some quasi-paternalist arguments for legalenforcement.

40. FEINBERG, supra note 3, at 67.41. FEINBERG, supra note 24, at 49; see also 25.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


the goods/interests.42 In particular, they ground three important powers orcompetencies:

(1) The right to make claims and (the opposite side of the same coin) the right tovoice grievances.

Not only does this “right” involve having “good reasons” for feelingaggrieved—as in “I’ve got a right to sing the blues”—but, more important,right-bearers are also put in a special position to give voice to the grievanceagainst those who have wronged them.43 Moreover, making claims and voic-ing grievances involve a second important moral competence implied bythese special moral claims:

(2) Others on whom duties to respect, protect, or promote the interests of therights-bearers are imposed are answerable to the rights-bearers.Q7

The duties are owed to the rights-bearers, and thus the rights-bearers arein a special moral position to hold others to their duties and to hold themresponsible for failing to fulfill those duties. This often also includes the rights-bearer’s power to release others from their duties. Claims arising from suchpersonal goods and interests also generate a third moral power:

(3) Rights-bearers have the power to call upon others to act in their behalf to holdpeople to duties owed to them and to make such people answerable whenthey violate their duties.

Feinberg does not often explicitly acknowledge this power, but it is implicitin his defense of rights of animals and the unborn.44 As long as subjects haveinterests or goods of their own, they are eligible as rights-bearers, Feinbergargues, even if they are not themselves capable of making claims againstothers who owe them duties respecting their interests or good; for theirclaims can be represented by proxies.

It does not follow but it is not a great stretch to say that such proxyrepresentation and actions necessary to back it up can be within the moralcompetence of rights-bearers who are able to make claims on their own. Ifwe are sometimes morally in a position (and perhaps morally required) toact as proxies to represent, assert, and defend the rights of certain animalsand the unborn, then a fortiori competent rights-bearers have the power tocall upon others likewise to act in their behalf. Part of what it is to have agenuine moral grievance, Feinberg seems to say, is that one can demandprotection against violations of one’s rights.45 Whether and to what extent

42. JOEL FEINBERG, FREEDOM AND FULFILLMENT (1992), at 204.43. Id. at 228–231.44. FEINBERG, supra note 4, at 159–184.45. FEINBERG, supra note 3, at 67.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


others are morally bound to heed this call need not be addressed here,since our concern is with the standing or title of people to act in certainways, not with the strength of the moral reasons for doing so. The title, onthis argument, rests in the rights-bearers power to call on such aid.

Finally, if rights-bearers have the power described in 3, then this mustbe the case, at least in part, because morality recognizes to some extentthe maxim that there is no genuine right without a remedy or at leastsome degree of protection, even when the rights-bearer is not in a positionto provide the protection or exact the remedy. It was something like thisthought that led Kant to the conclusion that we are all duty-bound to do ourparts to institute a structure of public right, to sign the social contract, andthereby establish public authorities. Whether or not Kant was correct aboutthis, we can reasonably conclude from the above argument that if there isa minimally legitimate public authority in place in our political community,rights-bearers have the power to call upon that authority to protect theirrights and respond effectively to their moral grievances. That is:

(4) Rights-bearers can demand protection of their rights from public authorities.

It is a small step from 4 to the conclusion that public authorities, acting inthe name of the political community as a whole, have standing to respond torights-bearers’ calls for protection, for otherwise the right to call upon thelaw to enforce these rights would be empty. Thus while grievance evils arewrongs to specific persons, and those who wrong them are directly answerableto the persons they wrong, wrongdoers may also be answerable to publicauthorities acting in behalf of the aggrieved.

If this argument is sound, then the political community’s standing to enactand enforce moral principles is thereby rooted in the nature of grievanceevils. Suppose someone threatens to interfere with actions they regard asserious wrongdoing. The wrongdoer might demand: What business is thisof yours? Where grievance evils are involved, one effective response wouldbe: The business is mine because the good that is threatened is mine. It isnot just the evil, even if very great, that makes it my business, that makesyou answerable to me; it is, rather, the fact that my good is at stake. Anotherresponse would be: The business is mine because her good is at stake andI am in an appropriate relationship with her. The simple core idea here isthat grievance evils are evils of the kind that accord to victims and otherswho bear appropriate relations to them standing to interfere; often, if notalways, they are also of sufficient moral weight to justify such interference.

I believe that something like this argument lies behind Feinberg’s en-dorsement of the moral entitlement thesis and grievance legal moralism. Itproceeds in two stages. At the first stage, Feinberg analyzes the nature ofgrievance evils. They are not impersonal evils but, rather, violations of per-sonal goods or interests and hence are wrongs done to someone that put thewrongdoer and the victim in a special relationship. He then maintains that

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


these are the kinds of goods that are appropriately respected by recognizingtheir possessors’ rights to them. At the second stage, he draws implicationsfrom this according of rights, including the moral authority of the politicalcommunity to recognize and enforce them. The arguments of the first stageare substantive moral arguments, albeit at a fairly high level of abstraction.They are arguments to the effect that the values recognized by grievancemorality are of the kind and moral weight that ground individual rights. Theargument seems to parallel the argument for the antipaternalism principlefrom the nature of autonomy. The argument is that the appropriate wayto respond to the goods about which grievance morality is concerned is torecognize the rights of their possessors. Moral rights define a special kindof ritual of recognition of the dignity of persons as sources of moral claimson others.46 “To respect a person is tantamount to respecting her rights,that is, to thinking of her as a prospective maker of weighty moral claims.”47

Feinberg seems to regard the second-stage arguments differently. Theyappear to be conceptual arguments, working out the logical implications ofaccording rights to a person.48 However, this strikes me as an unpromisingdirection in which to pursue the argument. It is not a conceptual truththat rights-bearers have not only a source of grievance within their owngood and standing as persons which they can press against others but also asubsidiary right to call on others (including the community at large) to assistthem in their claim. This plausible, indeed, very important thesis rests onfurther morally substantive considerations. Thus, pace Feinberg, we mustcast the arguments at both the first stage and the second as substantivemoral arguments.

This way of viewing Feinberg’s argument also fits with an attractiveview about the nature and moral foundations of rights.49 On this view,rights come in several varieties, each constituted by a different package ofHohfeldian normative relationships—permissions, duties, powers, immuni-ties, and the like—between their bearers and other agents. The compositionof any particular package depends on the nature and relative moral impor-tance of the goods or interests protected by it. The various components givestructure to the manner in which the good and the possessor of it are tobe regarded and respected. They set out the details of the requisite moralritual of respect.

If we understand the nature of the grievance argument in this way, we mustadmit that we have as yet only the outline of an argument, a sketch of its mainpremises without all the needed connective tissue. The powers described in

46. FEINBERG, supra note 4, at 155; FEINBERG, supra note 42, at 204, 225–227.47. FEINBERG, supra note 42, at 226.48. JOEL FEINBERG, SOCIAL PHILOSOPHY (1973), at 64–67; FEINBERG, supra note 4, at 148–152.49. JULES COLEMAN, Rethinking the Theory of Legal Rights, in MARKETS, MORALS AND THE LAW

28–63 (1988); Gerald, J. Postema, In Defense of “French Nonsense”: Fundamental Rights in Consti-tutional Jurisprudence, in ENLIGHTENMENT, RIGHTS, AND REVOLUTION 107–133 (N. MacCormick &Z. Bankowski eds., 1989), at 109–115.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


points 1 to 3 are presumably parts of a package that define the appropriatemanner in which to respect the values recognized by grievance morality.From Feinberg’s work we have only a rather general idea of the valuesand principles of grievance morality. Autonomy and human fulfillmentare included, surely, as are all those legitimate interests that may vary fromperson to person but that are likely to overlap in large measure, at least whenthey are broadly described. Equally important is the value of recognitionor status as a member of one’s community that Feinberg calls “dignity.”These are all personal goods, components of each person’s own good. It is notdifficult to grant that these are just the kind of values that are appropriatelyrespected by according their rightful possessors the right to voice grievancesand to make claims. In most cases, they also are morally important enoughto ground duties on the part of others to respect or even promote them,duties that are owed to the rights-bearer.

Less straightforward, but no less important, is the case for including 4in the rights packages rooted in grievance morality. We must supplementFeinberg’s discussion here. The liberal tradition offers at least two linesof argument for this purpose. The first is suggested by the social-contracttradition. In its Lockean version, the argument would be that if grievancegoods are morally weighty enough to justify according rights-bearers thepower to hold others to the duties owed to them, then they are also weightyenough to authorize those same rights-bearers to punish those who violatethese duties. Further, respect for autonomy requires that the rights-bearershave the power to waive or transfer this authorization to punish. To callon public authorities to hold others to their duties either is itself a tacittransfer to public authorities of this authorization to punish or calls intoplay a prior transfer. On this argument, the political community has standingto enforce grievance morality by virtue of the authorization transferred toit by it individual members.

A Kantian version of the argument does not assume an individual rightto punish and so does not involve a transfer of such a right to the politicalcommunity. Rather, it merely points out the need for a regime of rights,and hence a political authority entitled to enforce them, as a necessarycondition of the morally fundamental relationship of right among free andequal moral persons. Among human beings, in the absence of politicalauthority with the title to enforce the regime of rights understood as astructure of equal liberties for all, right could not exist.

Despite his commitment to the morally fundamental status of personalautonomy, I am not sure Feinberg would be comfortable with either of thesecontractarian arguments. An alternative route to the conclusion might liein a Mill-inspired utilitarian direction, but, despite his manifest debt to Millin many respects, I do not think Feinberg would heartily embrace Mill’sfoundational utilitarianism. He might find a somewhat different line of ar-gument more congenial. Proceeding from the value of dignity, one mightargue that rights give structure to a public ritual of respect for dignity

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


which is practiced by individuals and by the community. Individuals respectthe dignity or status of comembers of their community in part by holdingthemselves answerable to rights-bearers. The community acknowledges in-dividual dignity and gives public recognition of an individual’s status in thecommunity by seconding and supporting the individual’s efforts to holdothers to their duties to honor or protect grievance goods. This argument,like the others mentioned above, needs to be elaborated a good deal beforeit can be assessed, but only if some such argument (or some other argumentbroadly consistent with his liberalism) is successful can Feinberg’s defenseof grievance legal moralism get off the ground.

VIII. THE LIMITS OF STANDING

However, even such arguments are elaborated, it is apparent that they faceQ8

two major problems. First, they assume that legally enforceable wrongs areultimately individual, private wrongs. But this leaves an important dimen-sion of criminal law undefended. Public enforcement of morality is notmerely enforcement of morality by public means, but enforcement of publicwrongs. We distinguish the task of criminal law from those of torts, prop-erty, or contracts law precisely in terms of this distinction between publicand private wrongs. Hence if we accept the grievance account of the law’sstanding to enforce morality, we may be forced to rethink the task andappropriate techniques of criminal law. Or we must supplement it withQ9

another argument.This suggests a more fundamental problem facing the grievance argu-

ments, however they are elaborated. The arguments at best support theconclusion that the political community has standing to enforce grievancemorality. But grievance legal moralism makes the stronger, exclusive claimthat the political community has standing to enforce only grievance moral-ity. Of course, the above arguments themselves do not support any moreextensive authorization, but this does not rule out the possibility of anotherargument doing the job. The above argument from grievance morality givesno support for any conclusion regarding the limits of the community’s stand-ing to enforce morality. Thus even if at least one of the above argumentsis sound, the case against global legal moralism has not yet been made.We might say, with Feinberg, “To prevent [people from doing or causingfree-floating evils] with the iron fist of legal coercion would be to imposesuffering and injury for the sake of no one else’s good at all. For that reasonthe enforcement of most non-grievance morality strikes many of us asmorally perverse.”50 But this merely restates the liberal position; it doesnot yet offer an argument again global legal moralism.

50. FEINBERG, supra note 3, at 80.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


Again, we might look to the liberal tradition for arguments to bolsterFeinberg’s case for grievance legal moralism. For example, we might pressthe Lockean argument we briefly touched on before. In the absence oftransfer of rights to the political community by its individual members,we might argue, the community and its agent, the government, simplyhave no rights. Hence in the absence of a case in grievance morality forlegal intervention, no standing is possible, since by hypothesis there areno rights that could be transferred to ground that standing. Or we mightargue on Kantian lines that the only reason for establishing coercive politicalorder—for working to establish a civil society with an effective legal system—is to secure an effective structure of rights. Respect for the fundamentalvalue of autonomy requires that it be restricted only in the interest ofgreater protection of autonomy—coercive intervention is justified only asa restriction of a restriction of autonomy. If either of these arguments iscredible, then the global legal moralist is effectively challenged.

Again, I am not sure Feinberg would warmly embrace either of thesearguments.51 If not, he might try a somewhat different tack. He might lookto arguments that the global legal moralist might put forward and try to showthat, on their most plausible construal, they support only a more restrictedentitlement. Imagine, again, officials challenging someone who is about toact in such a way as to produce a free-floating evil. The admittedly odiousagent might say: Okay, it’s evil and I am wrong to do it, but what is that toyou? What makes it your business? Three kinds of arguments are typicallyused to show that some form of action or intervention is one’s business.They appeal to expertise, to some special responsibility, or to a special stake inthe matter under consideration. When it comes to free-floating evils, it ishard to imagine any persuasive general argument for the special wisdom orexpertise of legal officials or of the political community as a whole. When itcomes to the good of the community as a whole or the interests and rightsof its members, there is some basis—if only limited—for recognizing themoral expertise of government or the community as a whole. But on issuesbeyond that pale we are, with good reason, deeply skeptical of any claims ofmoral expertise.

Perhaps we can appeal to the special responsibility of the government orthe community as a whole to enact and enforce nongrievance morality.What could that responsibility consist of? Sometimes such responsibility isgrounded in a special relationship between agent and beneficiary—as in thecase of parents who are charged with the moral well-being of their children.But nongrievance evils are not in any way attached to or related to the goodof persons, so it is not clear how any relationship between persons couldground the claim to special responsibility. Of course, the responsibility

51. Locke does not figure much in Feinberg’s thinking, but Kant appears from time totime. Although Feinberg has some unkind things to say about the Kantian understanding ofautonomy (id. at 94–97), he might have been willing to entertain an argument of this sort fromKantian political morality.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


might be conferred or imposed on some persons or even on a communityas a whole, but we must then say who or what does the conferring andshow in what that party’s title rests. Conferred or devolved title presupposesstanding of the source. So such an appeal only pushes the argument back astage. And if our earlier arguments were sound, the mere fact that an evil canbe punished or prevented does not fill the gap. Thus it is very difficult to seehow an argument for the special responsibility of the political communityto respond to nongrievance evils might go.

Could an argument be made from the political community’s stake in pre-vention of such evils? Devlin thinks so. He argues that a political communityis entitled to enact and enforce morality so long as it is genuinely the com-munity’s public morality. A version of his argument might go as follows.52 Apolitical community has standing to enact and enforce morality insofar asdoing so is necessary in order to maintain the integrity of the moral life ofthat community. If we view the integrity of the moral life of a communityas an especially important public good in which individual members have apersonal stake and which, in virtue of being a public good, can be protectedonly through public means of the law, then we might be able to establishthe community’s stake in the enforcement of its public morality sufficientto ground its standing (but not necessarily its justification on any particularissue) to deploy the criminal law for purposes that go beyond the limits ofgrievance morality.

This argument has some plausibility, but only if we can make sense ofthe idea of the integrity of the moral life of a community and can insurethat the morality enforced is genuinely public. In the central chapters ofHarmless Wrongdoing (especially chapters 29, 29A, and 30) Feinberg exploresa number of reasons for being skeptical of both claims. I am not yet preparedto abandon the attempt to work out an argument along these lines, butI concede that Feinberg’s skepticism is entirely reasonable. Rather thanpursue this matter any further, I want to conclude by considering again thetwo cases that caused Feinberg to compromise his grievance legal moralism.

IX. THE TROUBLE CASES

Feinberg is right to be troubled by the gladiatorial-contest and malicious-conception cases. The argument for criminal prohibition of the behaviorinvolved in these cases is intuitively powerful and not plausibly dismissedas irrelevant to the issue. Feinberg’s liberal position must be adjusted todeal with them; however, I think Feinberg makes the wrong adjustment.Plausible arguments for deploying the criminal law against such behaviorcan be made from grievance morality. Consider each trouble case in turn.

52. see Postema, supra note 19, at 163–166.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


A. Gladiatorial Contests

It is not difficult to defend criminal prohibition of gladiatorial contests interms the harm principle can fully acknowledge. Surely the most fundamen-tal interests of the gladiators are put at enormous risk, and the potentialgains very likely outweigh those risks. Viewed on balance, the interests of Q10

the gladiators are set back. Moreover, their most fundamental rights areflagrantly violated—the most basic forms of moral decency owed by oneperson to another are denied them—first of all by their fellow gladiators,but even more by the promoters, who put them in circumstances in whichthey must fight for their lives. The spectacle, as typically portrayed, is un-speakably brutal and inhumane. Undeniably, harms are done, and wrongsare done to those suffering the harms. In the absence of fully informed anduncoerced consent, the wrongful harming is a compelling reason for legalintervention. It is exactly the kind of consideration a political communityhas undeniable standing to consider.

Kristol’s challenge, of course, lies in his claim that the case for crimi-nal intervention is no less compelling if all the parties involved have freelyconsented. Feinberg replies that we find the case for criminal prohibitioncompelling because we are deeply skeptical about the claim that the gladia-tors’ consent could be free and fully informed. Feinberg is right about this,of course, but it follows from this argument that we have reason to supportcriminal intervention only if less intrusive licensing measures cannot offeradequate safeguards against involuntary participation.53

The more serious concern is that if the consent is indeed free,Feinberg must conclude that this is a case of a harmless wrongdoing. Itis not strictly speaking a free-floating evil, but it is close kin, because theirconsent waives the gladiators’ right not to be subjected to a violent, humili-ating, and morally degrading death. And if no grievance evil is done by thegladiators to each other, it is hard to argue that the promoters or payingspectators wrongfully harm them by offering them a chance to participate inthe spectacle, for a consideration, of course. Notice that in Feinberg’s view,consent alone removes this case from the jurisdiction of the criminal law.The case for criminal prohibition is as compelling as ever, but the gladia-tors’ consent has put that case beyond the reach of the political community.Although consent is not enough to weaken the evil or even the wrongfulnessof the activity even a little, it is enough to vacate utterly the claim that awrong was done to the gladiators. Yet, Feinberg admits, the evil in this case issurely a relevant and maybe even decisive reason for prohibiting the activity.

I agree we have legitimate reason to invite criminal intervention inthis case, but I think the reason is rooted securely in grievance morality.Feinberg is mistaken in thinking that the evils in this case float free fromthe interests, rights, and fundamental good of the people involved. These

53. Richard Arneson, Liberalism, Freedom, and Community, 100 ETHICS 368–385 (1990), at 373.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


evils, indeed these wrongs, are anchored in the good of the gladiators, if anyevils or wrongs are. Specific human beings suffer them; we can give voiceto moral outrage in the name of the good and the status as a moral personof each of them. Moreover, despite their consent, each of them is entitledto give vent to resentment and moral protest at their treatment; they areentitled to grieve at grievances they have foregone through morally andprudentially ill-advised consent.54 Consent does not have the moral powerto wipe out such grievances; it is not the case that all grievances foregoneare grievances undone. To think otherwise is to give the volenti principle ab-solute moral weight, and that is more weight than it normally gets in liberalregimes of criminal law, more than many liberal thinkers for a very longtime have accorded it, and more than a fundamental commitment to per-sonal autonomy demands. Some of the most important rights championedby liberalism enjoy the supreme protection of recognition as inalienable andunwaivable. Surely the humanity put at risk for the excitement and commer-cial benefit of others in cases such as Kristol’s gladiatorial contest is worthyof such recognition.

This argument rests on the view that that certain wrongs done to otherhuman beings remain wrongs done to them regardless of their victims’consent. Consent is the exercise of a certain moral power, but that moralpower is not unlimited. To think otherwise is to confuse consent (and thevolenti principle) with the more fundamental moral value it serves, which, inFeinberg’s view, is autonomy. Limitations on consent are not automaticallyrestrictions of autonomy; indeed, it is conceivable that autonomy is bestserved in some cases through limits on consent even when such consent isfull and free. Fully competent moral agents lack the power to release othersfrom certain forms of treatment of them. Thus the wrongs are done to themregardless of consent or waiver. Political societies are entitled to deploythe criminal law to prohibit and punish such wrongs. Uncanceled wrongsare done by gladiators to other gladiators and by the promoters and supporters ofthe contest to all the gladiators. Put another way, the argument is not thatwe are entitled to prohibit people from subjecting themselves to degradingor dehumanizing treatment but, rather, that we are entitled to restrict theirability to enlist others in this endeavor, and this restriction is not directlyimposed on them but, rather, on others whom they would like to enlist.We are morally bound to respect the humanity in the person of others,even when they do not. Thus, at a certain point, we are entitled to prohibitothers from exploiting for their own amusement or financial gain the moralweaknesses of such persons.

Feinberg at one point seems to acknowledge and feel the force of thisargument,55 acknowledging that liberal principles cannot countenanceQ11

54. “Then can I grieve at grievances foregone,/And heavily from woe to woe tell o’er/Thesad account of fore-bemoaned moan,/Which I new pay as if not paid before.” WilliamShakespeare, Sonnet 30.

55. FEINBERG, supra note 35, at 79 and n. 35.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


chattel slavery, even if it is fully voluntary. “Because human negotiatorscannot agree to alienate their personhood they cannot by simple contractualagreement make themselves immune from general criminal statutes thatprotect the rights of others.”56 What is odd about this argument is that itfocuses on limits on the master’s power rather than on the slave’s. The mas-ter cannot opt out of the bonds of respecting the rights of others simply byexercise of his contractual powers. This is to look at the wrong side of thefabric. The source of this limit on the master’s power—his disability—lies inthe disability of the slave to waive those rights or more generally to evacuatethe wrong done to him in treating him as a chattel slave.

If this is right, we can argue for criminal prohibition of such contestsfrom within grievance morality. No compromise with global legal moralismis required, although we must weaken Feinberg’s treatment of the volentiprinciple as absolute. However, this is not to compromise our commitmentto individual autonomy or dignity but, rather, it is to serve these fundamentalvalues better.

This must be kept in mind as we consider possible extensions of the argu-ment for the legitimacy of criminal prohibition of gladiatorial contests. Forwe are forced to ask what exactly the limits are on the wrong-canceling forceof consent? Can we mount an argument along the same lines to supportthe standing of political society to prohibit, for example, dwarf-tossing,57 ornude dancing58 in bars, or the sale of body parts for transplant,59 or otherforms of willing exploitation? Is consent in such cases sufficient to defeatthe wrongdoing to the victims in such cases, or are we justified in saying, asI have suggested in the gladiatorial contest case, that the wrong is a wrongto the victim despite the consent? I am not prepared to say where this lineshould be drawn, but the above argument lays the groundwork for thinkingthrough these further cases.

Two related concerns structure this thinking. First, the argument mustproceed strictly within the domain of grievance morality. The evils/wrongsthat are identified as legitimate grounds for criminal prohibition must beshown to be evils suffered by and wrong done to individual moral persons byothers. This rules out the kind of global legal moralist argument indulgedby Justice Scalia in Glen Theatre:

The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fullyconsenting adults crowded into the Hoosier Dome to display their genitals toone another, even if there were not an offended innocent in the crowd. Oursociety prohibits, and all human societies have prohibited, certain activities not

56. Id. at 386.57. New York State Alcoholic Beverage Control Law, 6b; see MORALITY, HARM, AND THE LAW

(Gerald Dworkin ed., 1994), at 193.58. Barnes v. Glen Theatre, Inc. 501 U.S. 560 (1991).59. United States Public Health Code, Section 274e “Prohibition of Organ Purchases”; see

Dworkin, supra note 57, at 145.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


because they harm others but because they are considered, in the traditionalphrase, “contra bonos mores,” i.e., immoral.60

It is not enough, on the argument I have suggested, to insist with emphasisthat the behavior is wrong (let alone that for ages it has been believed to bewrong). The case must be made that it is a wrong to the parties involved.Second, the argument must take the form of showing that in cases likethose under consideration, the values of autonomy and moral dignity ofthe individuals involved are better served by an unwaivable right to certainkinds of behavior (respect for bodily integrity, for example). This will bea difficult argument to make in many cases, but as the gladiatorial contestcases shows, it is not impossible.

It is an interesting question whether acknowledging these limits on thevolenti principle would commit Feinberg to compromise his antipaternal-ism. If so, my offer to save him from compromising his principled rejectionof global legal moralism might look like robbing Peter to pay Paul. This isnot the place to discuss this matter in detail, but there is reason to thinkthat his antipaternalism is not seriously at risk. This reason lies in the factthat there is an important difference between Feinberg’s concerns aboutstate paternalism and the limits on the volenti principle I have urged. Theformer arise with respect to questions about one’s sovereignty regardingone’s own good. The latter, however, are concerned with matters of moralwrong, wrongs to oneself. The central question in the latter case is the ex-tent to which the voluntary consent of fully competent moral agents canevacuate wrongs done to them. Recall that Feinberg says “the voluntarilyrisked injury is treated by the liberal as if it were no evil at all,”61 but whenit comes to the operation of the volenti principle, a consented-to wrong toa person is no wrong at all to that person. If it remains wrongful, that is invirtue of considerations entirely different from considerations that make ita wrong to the victim.

Are all personal wrongs liable to this kind of elimination? Why is this so?And if not, at what point does the consent of individual moral agents lose itsnormative power? These rarely discussed questions are fundamental ques-tions of moral philosophy, not merely questions about the limits of statepower. It seems reasonable to think that, however they are answered, theyare different enough from our concerns about paternalism to be treated asdifferent inquiries such that answers to one such inquiry does not automat-ically pose challenges to the other.

B. Malevolent Conception

Imagine a woman who chooses to conceive and bear a child knowing thatthere is a very high probability that her child will be severely deformed and

60. Barnes v. Glen Theatre, 501 U.S. 560, 575 (1991) (Scalia dissenting).61. FEINBERG, supra note 3, at 6.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


will live a limited human life full of suffering and choosing it in order toprovide her with a meaningful focus for her energies. Of course, the caseis not difficult if we can conclude that from the point of view of the child,her life is not worth living and so it would have been better if she hadnot been born. But Feinberg imagines a case in which this is not obvious.Thus he feels compelled to deny that, despite her suffering, the child isput in a harmed condition by her mother’s malicious decision, and if not ina harmed condition, then she cannot be said to have been harmed in thesense required by his harm principle. Not having been harmed, she is novictim and has no grievance—which is not to say, of course, that what themother did was not evil or even wrongful, but only that she did not do wrongto the child. So if we think that the reasons for our condemnation of themother are also reasons for prohibiting her behavior, we must conclude thatthis is so despite the fact that the evil the mother did was, strictly speaking,free-floating. Feinberg is willing to allow this exception to his harm principleon the ground that it is exceedingly rare and so represents no significantthreat of being repeated in other situations.62

Again, I think there is reason to try to adjust Feinberg’s view at points otherthan by making an exception, albeit in itself apparently only marginal, to hisgrievance legal moralism. There are two places to look for the kind of slackwe need to accommodate our strong intuition that criminal prohibition ofthe mother’s behavior would not be illegitimate. First, we might look againat Feinberg’s notion of a harmed condition. What causes trouble in themalicious-conception example is not that there is no significant suffering Q12

but, rather, that (1) there is enough good in the child’s life to balance thesuffering to the point that the child’s life is not entirely without value to her;and (2) the only alternative to living with this suffering is not having beengiven life at all.

For Feinberg to determine whether a person has been harmed in theminimal sense that her interests are adversely affected by some action, weneed to look at the effects of that action on her interests overall and onbalance, and this is what leads to trouble in the malicious-conception case. Q13

I wonder whether this is always the best understanding of being harmed orput in a “harmed condition.” Especially when fundamental interests are setback, it makes great sense from a linguistic perspective, but more importantfrom a moral perspective, to say that the person has been harmed even whenthere are certain compensating beneficial effects. That is, it makes moralsense and is not inconsistent with a general liberal view of morality to takeespecially important interests as worthy of separate moral consideration.

If we do so, and if, as is likely, the kind of interests adversely affected in themalicious-conception case are among those that warrant such consideration,then it is possible to say the child was harmed. Or rather, it makes sense tosay so if we are permitted to understand the condition in this case relative Q14

62. Id. at 327.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


to some baseline other than a scenario in which this suffering does notoccur. Such a baseline might be that of a life of minimal human decencyand fulfillment. It would be a mistake to say that this child was made worseoff than she otherwise (in a condition without the suffering) would havebeen. But that does not seem to be the only dimension along which wecan legitimately assess her condition in moral terms. The suffering wouldbe a harm from her point of view if it is truly a kind of suffering which shemust endure. This harm is not free-floating; it is anchored to her, to herperspective on her life and its quality.

There is a second way to locate our moral intuitions squarely withingrievance morality. To see that the evil done by the mother is not merelyfree-floating but, rather, is clearly anchored to sake of the child, considerwhat the child might say to her mother. She would be entitled to say, forexample: “You cared nothing for me when you decided to conceive, nordo you care for me now, for both then and now I represent to you only anoccasion to exercise your nurturing talents. Yet to serve your needs, I mustsuffer.” This is as powerful an expression of moral grievance as any that fitFeinberg’s category of grievances, more powerful by a large margin thanthe protests one might lodge against inconsiderate neighbors who createan offensive nuisance or engage publicly in offensive behavior we cannotescape.

One way to understand the nature of this grievance is to see it as ex-pression of the judgment that, independent of the question of harm, themother wronged the child.63 The wrong consists in part in the mother actingfor especially mean and malevolent reasons. At the very least, the motherwas recklessly indifferent to the suffering she would engender and morelikely consciously seeking it out for her own self-serving purposes. This isnot just evidence of her evil heart but is a wrong to the child, because everyhuman being requires more respectful concern than was manifested in themother’s act.

If arguments along the lines I have suggested succeed, then what Feinbergshould do is to expand slightly his view of the scope of grievance morality byadjusting his understanding of the limits of the volenti principle, of morallyrelevant harm, and of the possible sources of personal wrongs, rather thancompromise his grievance legal moralism. And thus, if his argument forthe exclusive standing of our political communities to enact and enforcegrievance morality is sound, then he can accommodate these recalcitrantcases within the scope of their jurisdiction to prohibit the offensive actionsby means of the criminal law.

Of course, with respect to both the gladiatorial contest and the maliciousconception I have employed an ad hoc strategy here in defense of Feinberg’sQ15

grievance legal moralism. It is possible that with some ingenuity, we can con-struct other trouble cases with intuitive force equal to that of the two cases

63. Andrew Altman suggested this line of thought to me.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


we have considered but that cannot, however, be shoehorned into grievancemorality either by discrete limits on the volenti principle or by revisions ofour understanding of either the harm or wrong done to individuals.64 But Q16

of course, one of most important and lasting legacies of Feinberg’s philo-sophical work is that it teaches us always to be open to new challenges risingfrom our experience to our favorite principles and honestly to allow theirforce to press us to think deeper and harder about those principles. It takesnothing away from the monumental achievement of The Moral Limits of theCriminal Law to acknowledge that there is still much philosophical work tobe done.

APPENDIX: THE STRANGE AND GHOSTLY INFLUENCEOF ONE PROFESSOR JOSIAH S. CARBERRY

If we are entitled to give any credence to evidence scattered throughout his published works,Professor Feinberg struggled most of his career with evil ministrations and malicious obstruc-tions from his sometime colleague, Professor Josiah S. Carberry. In the interest of setting thehistorical record straight, I wish here to disclose with some regret the part I may have played,unwittingly, in some of Carberry’s ghostly torment of Professor Feinberg in the last decade ofhis life.

At least part of the documentary record of the Carberry-Feinberg struggle can be found inprefaces of several of Feinberg’s books. In Doing and Deserving (1970), for example, Feinbergwrites: “For whatever merits these essays possess I am indebted to many people. [To list themall] would take many pages and give no one his proper due. Fortunately, there is no similarproblem in respect to the book’s flaws and errors. They are due to the influence of myformer colleague, Professor Josiah S. Carberry, and I cheerfully hold him responsible forthem.”

Twelve years later, in Rights, Justice and the Bounds of Liberty (1982), Carberry gets a grudgingacknowledgment. “Once more,” Feinberg writes, “I am indebted to my former colleague JosiahS. Carberry for his help with these essays, but given his proven unreliability, I am not inclinedto thank him for it.” In Harm to Self (1986), gratitude worked in reverse: “On this particularvolume I received no help from Josiah S. Carberry. For that too I am grateful.”

By the opening volume of The Moral Limits of the Criminal Law (1984), Feinberg could nolonger disguise the conflict that had been seething under the surface for nearly fifteen years;indeed, by that time it appeared that the two were court-bound. “Philosophical helpers havebeen too abundant to acknowledge individually in this limited space,” Feinberg writes with hisaccustomed grace:

I hope I have remembered them all in the notes. In any event, they know who they are,and I want them all to know that I am immensely grateful for their help. My formercolleague Josiah S. Carberry will claim to be among their number. He may even go sofar as to sue me for plagiarism. Let him sue; he won’t have a chance.

However, no record of Carberry v. Feinberg is to be found in the archives of TucsonCivil Court. The reason was that Carberry died before he could file the suit he had metic-ulously prepared. Carberry, poor man, appears to have had just one brief obituary notice.

64. In conversation, Bill Edmundson suggested the following kind of case. Suppose

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


It can be found in Feinberg’s Harmful Wrongdoing (1988). “Finally I must mention Profes-sor Josiah S. Carberry, word of whose death has just reached me. De mortuis nil nisi bonum.On his behalf it must be said, in all fairness, that his actions were rarely as bad as hisintentions.”

One might have been forgiven for thinking that this sad saga had thus come to a close,yet, mirabile dictu, reading the opening pages of Freedom and Fulfillment (1992), I discovereda (one-sided) report of further malicious encounters between the long-suffering colleagues.Feinberg writes there:

For a variety of reasons it has become my custom to mention my former colleague, thelate Josiah S. Carberry (1874–1988), in the acknowledgments for my books. As I reportedat the time, Carberry died shortly before the publication of Harmless Wrongdoing a fewyears ago. There would be no point in mentioning this matter again were it not for thefact that I have recently received a letter from Carberry in which he argues with hisusual fanatic stubbornness that he is not dead! His argument, in my opinion, is weakand contrary to all the known evidence. It combines a misapplication of the Cartesiancogito with the kind of self-deception that characterized Carberry’s long life. Somepeople simply cannot bear to accept the truth about themselves.

Up to this point, I was just an onlooker, fascinated by the by-now-ghostly saga but stilluninvolved. However, I was soon drawn into the fray. It all began when I was asked to preparesome remarks on Feinberg’s work for a symposium in Atlanta at the Eastern Division of theAmerican Philosophical Association (APA) on December 29, 1993. My opening commentswere later transcribed. They went as follows:

While searching for a theme for the following remarks I received an email message fromJosiah S. Carberry. He apparently got wind of plans for these proceedings and wantedto press his deep and long-standing grievances against Feinberg. I was reluctant to replybut also unwilling just to ignore the message, since I had learned years ago from Joelthat the dead can be harmed (or their interests, at least, can be set back), although itwas not clear whether a dead (or widely reported to be dead) fictitious person could havehad interests to be set back. (Truth be told, I was less concerned about whether thedead can be harmed than about whether the dead can do the harming!)

Carberry, in his usual aggressive style, did not give me much time to think aboutthe problem. He shot back a second message in which was included a long list ofgrievances against Feinberg. He objected to Feinberg’s stubbornly ungrateful tone andhis gratuitous attacks on Carberry’s character and good name, all taken to the point ofdenying him the respect due to him as a person.

I replied that this was no business of mine, that if there was evil done him, it was notmy place to judge or to intervene.

Carberry replied immediately: “You don’t understand!” he said. “This is not a matterof some free-floating evil, a mere victimless wrong! Feinberg had directly and person-ally wronged me and I am entitled to your aid in pressing this grievance against themalefactor.” He was claiming his due from me at that point. “What better forum thanthe APA to expose Feinberg’s dark side?” he asked.

However, convinced of Carberry’s unreliability (after all, how far can you trust a guywho doesn’t stay dead), I declined to take up his cause. But, unlike Feinberg, I willpublicly thank him for giving me the idea for this paper.

I inadvertently deleted this email exchange, so you will have to take my word for its actuallyhappening. However, I do have full hard-copy documentation of the next two exchanges. Notlong after returning home from the APA, I received a personal note from Professor Feinberg,dated January 6, 1994. It reads in part: “Dear Jerry, I have just finished listening to the tape of

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35


your . . . talk. . . . Warmest best, Joel. P.S. I mellow with the years. I am even able now to forgiveJosiah Carberry. After all, he did me the favor, a couple of years ago, of dying. J.”

This was not the end of the matter, however, for less than two weeks later I received apostcard dated January 19, 1994. It read, “Dear Jerry, Could you send me a copy of the talkyou gave at Atlanta? I would much appreciate it. I think we’ve really got Feinberg this time!Maliciously yours, Josiah Carberry.” The postcard had no return address but it was postmarked“Tucson, AZ.” Some philosophers don’t die, they just retire to Arizona. Q17

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

xxx leg05016 October 4, 2005 16:35

Author’s queries:

Q1: Deletion OK? or something missing from the sentence?Q2: Intervention that is criminal? or something like “criminal-law intervention?Q3: Unclear—“last clause” meaning point 2?Q4: Is this debatable—apart from harm to the woman’s mental health—if she

later discovers the crime,? What if pregnancy ensues?Q5: Interference that is criminal? or “criminal-law interference?Q6: Confirm supra note 17.Q7: OK? i.e., not duties.Q8: OK?Q9: Unclear what “it” refers to.

Q10: “Gains very likely outweigh those risks”—or “gains very likely do notoutweigh those risks”?

Q11: For notes 55 and 56, confirm supra note 35 in this article. Also, note 35 inFeinberg 1986?

Q12: See below.Q13: See above—a third cause of “trouble” of a different kind from the two

above.Q14: OK?Q15: OK?Q16: n. 64 unfinished—please supply rest of sentence.Q17: References integrated into footnotes as per style. List deleted for consistency

with the rest of the issue.

123456789

101112131415161718192021222324252627282930313233343536373839404142434445

Politics is About the Grievance

Documents

Transcript of Politics is About the Grievance