Crimes against Autonomy: Gerald Dworkin on the Enforcement of Morality

By Becker, Lawrence C. | William and Mary Law Review, March 1999 | Go to article overview

Crimes against Autonomy: Gerald Dworkin on the Enforcement of Morality


Becker, Lawrence C., William and Mary Law Review


INTRODUCTION

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

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

I. MORAL NORMS AND NUCLEAR ENFORCEMENT: THE GENERAL PICTURE

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

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

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Crimes against Autonomy: Gerald Dworkin on the Enforcement of Morality
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.