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. …