Feinberg, Joel (1926–2004)
Joel Feinberg was a noted moral, social, political, and legal philosopher. He was born in Detroit, Michigan. After his military service in World War II, Feinberg earned bachelor's, master's, and doctoral degrees at the University of Michigan (Ann Arbor). His doctoral dissertation was titled "Naturalism and Liberalism in the Philosophy of Ralph Barton Perry" (1957).
It was not until 1960, when Feinberg was thirty-three years old, that he published his first philosophical essay. During the next four decades, while Feinberg taught at Brown, Princeton, UCLA, Rockefeller, and Arizona, his scholarly output was prodigious. Within a few years of his arrival at the University of Arizona, the philosophy department there attracted several other prominent philosophers and become one of the most highly regarded programs in the United States. Feinberg was honored by his philosophical peers in 1981 by being elected president of the Pacific Division of the American Philosophical Association. In 1988, he was one of the first individuals to be designated Regents Professor at the University of Arizona.
Liberalism was Feinberg's focus throughout his long and distinguished career. During the 1980s, he wrote his magnum opus, the four-volume, 1,397-page Moral Limits of the Criminal Law. Feinberg's aim in this work (which he called his "tetralogy") was "to make the best possible case for liberalism" with respect to the moral limits of the criminal law (Harm to Others, p. 15). He thought of himself as "vindicat[ing] the traditional liberalism derived from [John Stuart] Mill's On Liberty " (ibid.). Although Feinberg had no legal credentials (other than having been a Liberal Arts Fellow at Harvard Law School in 1963–1964), he has already influenced American law. At least one state supreme court has cited him as a persuasive authority. (See Armstrong v. Montana, 296 Mont. 361, 989 P.2d 364  [holding that a Montana statute prohibiting physician assistants from performing abortions violated the privacy, equal-protection, and bill-of-attainder provisions of the Montana constitution].)
Feinberg begins his tetralogy with what he calls a presumption in favor of (individual) liberty. This presumption means that "[l]iberty should be the norm; coercion always needs some special justification" (Harm to Others, p. 9). He then sketches a number of "liberty-limiting principles," each of which states a reason—but not a necessary or a sufficient condition—for coercing individuals. The question he sets for himself is which of these principles, if any, are valid. Here, for example, is the harm principle:
It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values. (Harm to Others, p. 26 [italics in original; footnote omitted])
Feinberg endorses two liberty-limiting principles: the harm principle and the offense principle. He rejects two others: legal paternalism and legal moralism. Volume one of his tetralogy, Harm to Others, elaborates and defends the harm principle. Volume two, Offense to Others, elaborates and defends the offense principle. Volume three, Harm to Self, elaborates and rejects legal paternalism. Volume four, Harmless Wrongdoing, elaborates and rejects legal moralism.
Legislators who are guided by Feinberg's liberalism, with its normative commitments to individual liberty and personal autonomy, would prohibit and punish only harmful or seriously offensive conduct (but not necessarily all of such conduct). An example of seriously offensive conduct would be a pornographic billboard that individuals cannot reasonably avoid. Feinbergian (ideal) legislators would not punish conduct solely on the ground that it is harmful to the actor. That is legal paternalism, which is an affront to personal autonomy. Nor would they punish conduct solely on the ground that it is immoral. That is legal moralism. It is important to understand that Feinberg's rejection of legal moralism does not rest on moral skepticism, nihilism, relativism, or subjectivism. One can be a moral objectivist—a believer in objective moral values—and still hold that it is improper for legislators to enforce a single "true" morality. Feinberg's aim is practical: to "guide the legislator by locating the moral constraints that limit his options" (Harm to Others, p. 4). It is "a quest not for useful policies but for valid principles" (Harm to Others, p. 4).
The four volumes together make a powerful case for "the liberal position" on the moral limits of the criminal law. Feinberg does not argue for liberalism directly by appealing to "moral primitives" or "self-evident truths" (Harm to Others, p. 17). Instead, he adopts the argumentum ad hominem technique. This type of argument consists in appealing to values, beliefs, and convictions his readers are presumed to have or to judgments they are presumed to make. Feinberg's objective is to persuade these readers that the liberal position on the moral limits of the criminal law systematizes their values, beliefs, convictions, and judgments better than any alternative. It is a search for coherence, not foundations. In effect, he is trying to show his readers that they are—already, unwittingly—liberals.
Among the areas in applied or practical ethics to which Feinberg made important contributions are abortion and animal rights. In his influential 1979 essay "Abortion," he sought to structure the debate over the morality and legality of abortion by (as he later put it) "locating crucial but implicit presuppositions, centrally affected interests, critical distinctions, and so on" (Freedom and Fulfillment, p. viii). In an essay published in 1971, four years before Peter Singer's celebrated Animal Liberation appeared, Feinberg argued that animals are "among the sorts of beings of whom rights can meaningfully be predicated and denied" (Rights, Justice, and the Bounds of Liberty, p. 166). Feinberg was not arguing that animals do in fact have rights. He was arguing that it is not incoherent—as many people had thought—to ascribe rights to them. This was an important step in what became a powerful case for including nonhuman animals in the moral community. By clarifying the concept of a right, Feinberg was able to show that certain denials of rights were ill-founded. To Feinberg, "[c]onceptual clarification is the most distinctively philosophical of enterprises" (Harm to Others, p. 17). Clear thought leads to or is an indispensable part of sound moral judgment.
Feinberg's work, taken as a whole, is best characterized as social philosophy—interpreted broadly to include moral, political, and legal philosophy. In addition to the moral limits of the criminal law, he was interested in and made original contributions to the understanding of responsibility, punishment, desert, mental illness, rights, justice, liberty, civil disobedience, freedom of expression, paternalism, autonomy, and fulfillment. His textbook Reason and Responsibility: Readings in Some Basic Problems of Philosophy, which appeared in 1965 (the twelfth edition was published in 2005), is among the best-selling philosophy textbooks of all time. Feinberg proved that original, important philosophical work is compatible with textbook writing. He was ever the teacher. Late in life, he published a delightful little book entitled Doing Philosophy: A Guide to the Writing of Philosophy Papers (1997).
It is fitting that Feinberg wrote a book on writing, for his writing style is justly famous and much emulated. His writing is clear, simple, and penetrating—at times even beautiful—despite the complexity of the issues and concepts with which he grappled. Several generations of philosophers have admired and learned from Feinberg, both substantively and stylistically. Many of his students went on to prominent careers of their own, in law or philosophy or both. In 1994, one of his most accomplished students, Jules Coleman, and a former colleague, Allen Buchanan, published an aptly titled collection of critical essays devoted to Feinberg's work: In Harm's Way: Essays in Honor of Joel Feinberg.
works by feinberg
Doing and Deserving: Essays in the Theory of Responsibility. Princeton, NJ: Princeton University Press, 1970. This volume collects essays published between 1960 and 1969 (inclusive). The essays concern such concepts as act, cause, harm, punishment, desert, and blame. Feinberg thought of these essays as "straddling ethics, philosophy of mind, and philosophy of law."
Social Philosophy. Foundations of Philosophy Series, edited by Elizabeth Beardsley and Monroe Beardsley. Englewood Cliffs, NJ: Prentice-Hall, 1973. This highly regarded monograph concerns itself with "philosophical questions about social relations." Among the concepts investigated are freedom, coercion, legal rights, human rights, and social justice. This book is where Feinberg introduced the concept of a liberty-limiting principle that figured so prominently in his later work.
Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy. Princeton, NJ: Princeton University Press, 1980. This volume collects essays published between 1964 and 1978 (inclusive). The essays concern such concepts as liberty, harm, offense, legal paternalism, and rights. Feinberg thought of these essays as dealing with "hard cases for the application of the concept of a right."
The Moral Limits of the Criminal Law, Vol. 1: Harm to Others. New York: Oxford University Press, 1984. This is the first volume of Feinberg's "account of the moral constraints on legislative action." Feinberg discusses the concept of harm; its relation to such concepts as interests, wants, hurts, offenses, rights, and consent; hard cases for application of the concept of harm; and various problems involved in assessing, comparing, and imputing harms.
The Moral Limits of the Criminal Law, Vol. 2: Offense to Others. New York: Oxford University Press, 1985. Feinberg discusses the concept of offense (as a mental state distinct from harm) and some of its applications, including pornography, obscenity, and "dirty words."
The Moral Limits of the Criminal Law, Vol. 3: Harm to Self. New York: Oxford University Press, 1986. Feinberg discusses legal paternalism, personal autonomy, and the concept of voluntariness.
The Moral Limits of the Criminal Law, Vol. 4: Harmless Wrongdoing. New York: Oxford University Press, 1988. Feinberg discusses legal moralism: the view that "[i]t can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offense to the actor or to others."
Freedom and Fulfillment: Philosophical Essays. Princeton, NJ: Princeton University Press, 1992. This volume collects essays published between 1975 and 1991 (inclusive). The essays concern such concepts as wrongful life, abortion, freedom of expression, bad samaritanism, moral rights, and absurd self-fulfillment. Despite the title, Feinberg thought of these essays as dealing with "problems about rights."
Doing Philosophy: A Guide to the Writing of Philosophy Papers. Belmont, CA: Wadsworth, 1997.
Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 2003. This volume collects essays published between 1992 and 2003 (inclusive). The essays concern such concepts as natural law, moral rights, entrapment, criminal attempts, government subsidies for the arts, and evil. As the title implies, Feinberg thought of these essays as dealing with "basic questions" in the philosophy of law.
Works on Feinberg
Coleman, Jules L., and Allen Buchanan, eds. In Harm's Way: Essays in Honor of Joel Feinberg. Cambridge, U.K.: Cambridge University Press, 1994. This volume contains critical essays by Allen Buchanan, Shelly Kagan, Richard J. Arneson, David Lyons, David A. J. Richards, Thomas Morawetz, Jules L. Coleman, Jean Hampton, John Martin Fischer and Mark Ravizza, Jeffrie G. Murphy, Joan McGregor, Robert F. Schopp, Sanford H. Kadish, Holly M. Smith, and Hyman Gross.
Keith Burgess-Jackson (2005)