When the possession, use, or display of sexually explicit materials is prohibited by law, and violations are punished by fine or imprisonment, many thousands of persons are prevented from doing what they would otherwise freely choose to do. Such forceful interference in private affairs seems morally outrageous, unless, of course, it is supported by special justifying reasons. In the absence of appropriate reasons, the coercive use of governmental power, based ultimately on guns and clubs, is merely arbitrary and as such is always morally illegitimate. Criminal prohibitions, of course, are sometimes backed by appropriate reasons, and when that is the case, they are not morally illicit uses of force but rather reasonable regulations of our social activities.
What then are "appropriate reasons" for criminal prohibitions? Surely the need to prevent harm or injury to persons other than the one interfered with is one kind of legitimate reason. Some actions, however, while harmless in themselves, are great nuisances to those who are affected by them, and the law from time immemorial has provided remedies, some civil and some criminal, for actions in this category. So a second kind of legitimate reason for prohibiting conduct is the need to protect others from certain
This article is reprinted from the University of Pittsburgh Low Review, Vol. 40, No. 4 (Summer, 1979), by permission of the University of Pittsburgh Law Review and the author. This essay will be the basis of a chapter in Professor Feinberg forthcoming book, The Moral Limits of the Criminal Law, to be published by Oxford University Press, New York, in 1983.