CRITIQUE: JOEL FEINBERG'S OFFENSE TO OTHERS
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Critique: Joel Feinberg's Offense to Others
(Noble Blasphemy, Part II)
Parts 1 & 2
– July 10, 2014
– revision © 2014
This essay was originally written both with and after the "Noble Blasphemy" essay (found here) in 2008. The version here is an editing of that essay — with some reworking to fit the context of this site. As it states overtly in its opening, it is somewhat dependent upon that essay for its ideation, enough so that I question whether this can stand alone. If I were writing it for publication, there would be far more integration of the ideas from the former to the latter.
Though, I consider it a worth while endeavor nonetheless, especially as the book in critique is (or was) considered a major, liberal work on the subject of the criminalization of offense to others — to be honest, a reception that dumbfounds me, as on its face it is to me a conservative justification for the criminalization of culturally unwanted actions, a mechanism for majority repression of minority — including individual — belief.
It is, as is admitted, an imperfect work in its presentation; but, I stand by its ideas. I put it here for those who might find it interesting. Hopefully it is then also found useful. Because of its length I have here divided it up into three pages: Parts 1 and 2, 3 and 4, and 5 and 6.
1. Introductory Thoughts
As prompted by its subtitle, this essay is a continuation of the ideas presented in my "Noble Blasphemy." It's subject is a critical look (in both meanings of the word) at Joel Feinberg's central ideas in his book Offense to Others, the second volume of the four volume study The Moral Limits of the Criminal Law. This essay is an extension of the earlier essay in that it is a continuation of that exploration of blasphemy as both a social and legal event and as a theoretic entrance into a systemic study of language, society, and the law. As originally conceived, Feinberg's work was meant to be a central part of that essay, primarily for Feinberg's discussion of profound offense. But as I progressed in the writing of "Noble Blasphemy," it became clear that Feinberg's work as a whole demanded direct attention, for it became clear that his claim to being a liberal approach to the subject was undermined in that his theses function in the same manner as blasphemy law: that is, Feinberg was also merely arbitrarily drawing a line between what was socially acceptable and unacceptable, and justifying that line with appeals to "higher" authority (for Feinberg, universal moral sensibilities). As such, while Feinberg was claiming the ground of liberal legal theory, he was in fact performing a conservative defense of cultural mores (the very purpose of blasphemy law).
In the early stages of that first essay, much more information began to be pulled in than I expected. I realized a lot of groundwork had to be done before I could approach Feinberg in the manner I desired. As such, rather than working out of Feinberg, the first essay became the establishing of the fundament from which my desired approach to Feinberg could be worked.
Because of this genesis, this essay is unavoidably flawed. It derives greatly upon the ideas of "Noble Blasphemy"; but, because of its being focused upon a single work not enough of those ideas are brought in explicitly to these pages. Ideas are brought in insufficiently and too choppily. So while this accomplishes its aim of being a critique of Feinberg's work, it is perhaps, as a single essay, too solely that critique.
In final consideration of this essay, I cannot not admit to its many flaws. But I can at least say that I have done — if ungracefully — what I set out to do: sketched out the shape and shadow of a critique of Feinberg's thesis, one that showed how Feinberg's ideas operate against is professed intent.
2. Outlining Feinberg's Basic Ideas
2.1 Feinberg's Liberalism
The starting point of Feinberg's four volume exploration of offense is John Stuart Mill (centrally, and arguably, On Liberty). Mill's presence may be primarily one behind the scenes of Offense to Others, but he is there nonetheless, even if for a single invocation, and in that invocation operating as a counterpoint.
The question Feinberg is addressing in the greater work (of the four volumes of The Moral Limits of Criminal Law) is, "What sorts of conduct may the state rightly make criminal?" The first volume concerned harm, which nearly every philosopher (legal and otherwise) would accept as justifiably criminal conduct.
However: "Controversy arises," Feinberg says, "when we consider whether it is the only valid liberty-limiting principle, as John Stuart Mill declared."
Feinberg embraces that controversy and proposes such an extension of criminalization of action beyond Mill's limits, offering an offense principle to stand next to the harm principle as the gateway to that end. Feinberg doubly embraces the controversy in claiming that his proposed criminalization of offense is a liberallegal philosophy, even though it goes against Mill, who is often declared the father of political liberalism.
Even at this point, the thinking reader will have arguments against the claimed liberality of Feinberg's project: after all, how could it be called a liberal action if Feinberg is sharply limiting freedom as defined by the father of political liberalism? In a reply as quickly formulated, perhaps Feinberg may not feel he is so sharply limiting in that his systemic clarifications that the offense principle and the apparatus that goes with it should, by his account, be used only sparingly, and deal out minor sentences at worst. Even that, however, brings question, in that it seems Feinberg is oblivious to basic arguments of stigma, of the use of small acts to operate broad repressions, and that the slippery slope is best avoided by not creating pathways that lead to descent — a fairly obvious principle of liberalism that seems to escape Feinberg's thought.
Indeed: in beginning my reading of Offense to Others I was frequently prompted to ask a fundamental and yet unanswered question: what, initially, propelled Feinberg into finding justification for criminalization of offense? The project itself, in its very nature and intent, reeks of a conservative correction of liberal principles. In fact, if proposed to Mill, could not the first response be, simply, the counter-question: Why must we have such criminalization? I have not noticed a need for it. (And, ultimately, is there a need for such a thing that does not lie in one of two places: governmentally backed restrictions of rights (cut it any way and it always reads "oppression"), or the individual desire for a means to end behavior that personally found offensive? (It is not terribly difficult not to convince oneself that such latter motivations underly Feinberg's arguments, even if the text has been academically cleaned of evidence of such. And since, as such, such a conclusion has no smoking gun to back it up, the fact that a text that claims to be liberal could produce such a intuitive reading calls to question just how liberal the claimed liberality actually is.)
I have wholly drifted into speculation and intimation, and must pull up before I go further.
2.2 The Intent of this Essay
Nonetheless for my wandering, my intent here has been made apparent. I wish to approach Feinberg through a similar question as his own: is that which Feinberg is proposing — not only in the result but in the modality, the nature, the system of the resulting theory (and argument toward) — liberal? Or is it wolves in sheep's clothing, so wholly disguised that even Feinberg himself is missing the teeth? My tone here is neither facetious nor sarcastic: it is in fact to the very point, and to the second theme of this essay, that which refers back to the first essay and my own greater project, blasphemy. Specifically, the hypothesis that the reason that the conservative nature of Feinberg's proposal is concealed is because that particular conservative modality will of its own nature conceal itself. Feinberg has permitted his liberal argument to be governed by nomic demands, by that ideological superstructure fully discussed in the "Noble Blasphemy." And, since his argument is governed by rules and structures of the nomos, since his argument is crafted out of the modality of the nomic, it by definition will function to reduplicate the nomos, which means to maintain status quo and the modality of status quo — which is conservatism. Granted, Feinberg's ideas are leftist within the always conservative system of the contemporary cultural nomos, but they do, nonetheless, function as part of the nomos. As such, they are in no way liberatory. (Indeed, in the language of the first essay, Feinberg's ideas are, ultimately a fundamentalism, if only mildly so.)
Footnote numbers link back to text.
^1. Joel Feinberg, Offense to Others (1985).
^2. It is undeniable that Mill is one of Feinberg's fathers. In the index to Offense to Others, Mill gets 13 references, including the reference cited here. When he does appear, it is accepted authority, even if Feinberg is writing somewhat against him in supporting the possible criminalization of offense.
^3. Feinberg at ix.
^5. Feinberg also declares him such (if I remember correctly, I can not presently find the relevant essay in my stacks.)
^6. Feinberg's liberalism seems not inadequately described as Burkean, as that form of conservatism that does not desire utter stasis (or, more extremely, the return to previous times), but which views social development as being best when it is slow, avoiding all radical breaks or disruptive shifts.