Joel Feinberg

Joel Feinberg (October 19, 1926 in Detroit, Michigan – March 29, 2004 in Tucson, Arizona) was an American political and legal philosopher. He is known for his work in the fields of ethics, action theory, philosophy of law, and political philosophy^[1] as well as individual rights and the authority of the state.^[2] Feinberg was one of the most influential figures in American jurisprudence of the last fifty years.^[3]

Feinberg studied at the University of Michigan, writing his dissertation on the philosophy of the Harvard professor Ralph Barton Perry under the supervision of Charles Stevenson. He taught at Brown University, Princeton University, UCLA and Rockefeller University, and, from 1977, at the University of Arizona, where he retired in 1994 as Regents Professor of Philosophy and Law.

Feinberg was internationally distinguished for his research in moral, social and legal philosophy. His major four-volume work, The Moral Limits of the Criminal Law, was published between 1984 and 1988. Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the US. His former students include Jules Coleman, Russ Shafer-Landau, and Clark Wolf.

The Moral Limits of the Criminal Law

Feinberg's most important contribution to legal philosophy is his four-volume book, The Moral Limits of the Criminal Law (1984-1988), a work that is frequently characterized as "magisterial."^[4] Feinberg's goal in the book is to answer the question: What sorts of conduct may the state rightly make criminal? John Stuart Mill, in his classic On Liberty (1859), had given a staunchly "liberal" answer to this question. According to Mill, the only kind of conduct that the state may rightly criminalize is conduct that causes harm to others. Feinberg shares Mill's liberal leanings, though he thinks that liberals can and should admit that certain kinds of non-harmful but profoundly offensive conduct can also properly be prohibited by law. In The Moral Limits of the Criminal Law, Feinberg seeks to develop and defend a broadly Millian view of the limits of state power over the individual. In the process, he defends what many would view as characteristically "liberal" positions on topics such as suicide, obscenity, pornography, hate speech, and euthanasia. He also analyzes with great subtlety and skill concepts such as "harm," "offense," "wrong," "autonomy," "responsibility," "paternalism," "coercion," and "exploitation." In a surprising twist, Feinberg concedes in the conclusion to the final volume that liberalism may not be fully defensible.^[5] Liberals, he claims, may have to concede that in rare cases it may be legitimate for the government to criminalize certain kinds of moral harms and harmless immoralities.^[6]

A Ride on the Bus

In Offense to Others, the second volume of The Moral Limits of the Criminal Law, Feinberg offers one of the most famous thought-experiments in recent philosophy: a series of imaginary scenarios he calls "a ride on the bus." Feinberg invites us to imagine a bus ride in which you, a passenger rushing to an important appointment, are confronted by a series of deeply offensive but harmless acts. Some of the acts involve affronts to the senses (e.g., a man scratching his fingernails across a slate). Others involve acts that are deeply disgusting or revolting (e.g., eating various kinds of nauseatingly repulsive things). Still others involve affronts to our religious, moral, or patriotic sensibilities (e.g., overt acts of flag desecration); shocks to our sense of shame or embarrassment (such as acts of public sex); and a wide range of offensive conduct based on fear, anger, humiliation, boredom or frustration. The thought experiment is designed to test the limits of our tolerance for harmless but deeply offensive forms of behavior. More precisely, it raises the question "whether there are any human experiences that are harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at the cost of other persons' liberties."^[7] Feinberg argues that even left-leaning, highly tolerant liberals must recognize that some forms of harmless but profoundly offensive conduct can properly be criminalized.

"Psychological Egoism"

In a paper prepared in 1958 for the benefit of students at Brown, Feinberg seeks to refute the philosophical theory of psychological egoism, which in his opinion is fallacious. So far as he can tell, there are four primary arguments for it:

1. "Every action of mine is prompted by motives or desires or impulses which are my motives and not somebody else's."^[8]
2. "[W]hen a person gets what he wants, he characteristically feels pleasure."^[9]
3. "Often we deceive ourselves into thinking that we desire something fine or noble when what we really want is to be thought well of by others or to be able to congratulate ourselves, or to be able to enjoy the pleasures of a good conscience [...]. Indeed, it is a simple matter to explain away all allegedly unselfish motives [....]"^[10] He quotes Lucius F. C. Garvin to this effect: "Once the conviction that selfishness is universal finds root in a person's mind, it is very likely to burgeon out in a thousand corroborating generalizations. It will be discovered that a friendly smile is really only an attempt to win an approving nod from a more or less gullible recording angel; that a charitable deed is, for its performer, only an opportunity to congratulate himself on the good fortune or the cleverness that enables him to be charitable; that a public benefaction is just plain good business advertising. It will emerge that gods are worshipped only because they indulge men's selfish fears, or tastes, or hopes; that the "golden rule" is no more than an eminently sound success formula; that social and political codes are created and subscribed to only because they serve to restrain other men's egoism as much as one's own, morality being only a special sort of "racket" or intrigue using weapons of persuasion in place of bombs and machine guns. Under this interpretation of human nature, the categories of commercialism replace those of disinterested service and the spirit of the horse trader broods over the face of the earth."^[11]
4. "Psychological egoists often notice that moral education and the inculcation of manners usually utilise what Bentham calls the 'sanctions of pleasure and pain.' Children are made to acquire the civilising virtues only by the method of enticing rewards and painful punishments. Much the same is true of the history of the race. People in general have been inclined to behave well only when it is made plain to them that there is 'something in it for them.' Is it not then highly probable that just such a mechanism of human motivation as Bentham describes must be presupposed by our methods of moral education?"^[12]

Feinberg observes that such arguments for psychological egoism are rarely mounted on the basis of empirical proof when, being psychological, they very well ought to. The opening argument he dubs a tautology^[13] from which "nothing whatever concerning the nature of my motives or the objective of my desires can possibly follow [...]. It is not the genesis of an action or the origin of its motives which makes it a 'selfish' one, but rather the 'purpose' of the act or the objective of its motives; not where the motive comes from (in voluntary actions it always comes from the agent) but what it aims at determines whether or not it is selfish."^[14]

Similarly flawed in Feinberg's opinion is the second argument. Just because all successful endeavour engenders pleasure does not necessarily entail that pleasure is the sole objective of all endeavour. He uses William James's analogy to illustrate this fallacy: although an ocean liner always consumes coal on its trans-Atlantic voyages, it is unlikely that the sole purpose of these voyages is coal consumption.

The third argument, unlike the first two, contains no non sequitur that Feinberg can see. He nevertheless adjudges that such a sweeping generalisation is unlikely to be true.

In the final argument, Feinberg sees a paradox. The only way to achieve happiness, he believes, is to forget about it, but psychological egoists hold that all human endeavour, even that which achieves happiness, is geared towards happiness. Feinberg poses a thought experiment in which a character named Jones is apathetic about all but the pursuit of his own happiness. Because he has no means to achieve that end, however, "[i]t takes little imagination [...] to see that Jones's one desire is bound to be frustrated."^[15] To pursue only happiness, then, is to fail utterly to achieve it.

Bibliography

• Doing and Deserving: Essays in the Theory of Responsibility. Princeton: Princeton University Press, 1970.
• "The Rights of Animals and Future Generations". In William Blackstone (ed.), Philosophy and Environmental Crisis. Athens, Georgia: University of Georgia Press, 1974. ISBN 0-8203-0343-7.
• Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy. Princeton: Princeton University Press, 1980.
• The Moral Limits of the Criminal Law. Vol. 1, Harm to Others. New York: Oxford University Press, 1984.
• The Moral Limits of the Criminal Law. Vol. 2, Offense to Others. New York: Oxford University Press, 1985.
• The Moral Limits of the Criminal Law. Vol. 3, Harm to Self. New York: Oxford University Press, 1986.
• The Moral Limits of the Criminal Law. Vol. 4, Harmless Wrongdoing. New York: Oxford University Press, 1988.
• Freedom and Fulfillment: Philosophical Essays. Princeton: Princeton University Press, 1992.
• Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 2003.

See also

• American philosophy
• List of American philosophers

Notes

1. Honderich T. The Oxford Companion to Philosophy. Oxford, UK: Oxford Univ. Press, 1995: 270. ISBN 0-19-866132-0
2. NEW YORK TIMES Monday April 5, 2004
3. Jeff Harrison, 'In Memoriam: Joel Feinberg, University of Arizona News, March 31, 2004
4. For example by Dale Jamieson, Reason in a Dark Time: Why the Struggle against Climate Change Failed--and What It Means for Our Future (New York: Oxford University Press, 2014), p. 168; R. A. Duff, "Symposium on Criminalization," Criminal Law and Philosophy (2014), vol. 8, p. 147; Alan Werthheimer, "Liberty, Coercion, and the Limits of the State," in Robert L. Simon, ed., The Blackwell Guide to Social and Political Philosophy (Malden, MA: Blackwell Publishers, 2002), p. 43.
5. Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrongdoing. New York: Oxford University Press, 1988, p. 319.
6. Ibid, p. 324.
7. Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others. New York: Oxford University Press, 1985, p. 10.
8. Duncan-Jones 1952, p. 96.
9. Feinberg 2008, p. 521.
10. Feinberg 2008, p. 521.
11. Garvin 1953, p. 512f.
12. Feinberg 2008, p. 522.
13. To his mind, it says nothing more than that all of one's motives and desires are motives and desires, which, while true, is not especially significant.
14. Feinberg 2008, p. 522.
15. Feinberg 2008, p. 525.

References

• Duncan-Jones, Austin. Butler's Moral Philosophy. London: Penguin, 1952.
• Feinberg, Joel. "Psychological Egoism." In Reason & Responsibility: Readings in Some Basic Problems of Philosophy, edited by Joel Feinberg and Russ Shafer-Landau, 520-532. California: Thomson Wadsworth, 2008.
• Garvin, Lucius F. C. A Modern Introduction to Ethics. Boston: Houghton Mifflin, 1953.

External links

• [http://works.bepress.com/bryan_druzin/6/ Bryan Druzin, and Jessica Li, The Criminalization of Lying: Under what Circumstances, if any, should Lies be made Criminal?, 101 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY (Northwestern University) (forthcoming 2011).