other people are watching them could be grounds for prohibition. And indeed this
is what legal moralists maintain: allshould be prevented from watching such a film.^1
In an attempt to distinguish prohibition on grounds of offensiveness from
prohibition on grounds of moral disapproval Feinberg introduces the concept of
a charientic judgement (the ‘Charites’ are the Greek goddesses of grace: they are
often represented as the Three Graces). If we wish to judge an act or expression
uncharienticwe might say it is vulgar or uncouth or boorish or tasteless. If we were
to judge something immoralwe would say it is wrong or bad or evil or selfish.
Moral disapproval may entail resentment, whereas charientic disapproval entails
contempt. Crucially, there is no charientic equivalent to guilt, although we can feel
shame if we realise we have inadvertently committed a charientic faux pas.
Harmless wrongdoing
This is the most difficult principle to grasp. In part, the difficulty lies in its
formulation: if ‘wrongness’ is defined as ‘that which is harmful’ then harmless
wrongdoing is a contradiction in terms. It may, however, be that a distinction is
being made between, on the one hand, right/wrong, and, on the other, good/bad.
In everyday speech, we use these pairs interchangeably, so right equals good, and
wrong equals bad. But philosophers do make a distinction between (a) rightness,
or that which is obligatory, and (b) goodness, or an end that we should pursue.
For example, if we obey the law we are doing right – we are fulfilling our obligations
- but ‘doing right’ tells us nothing about whywe do right. We might obey the law
from purely self-interested reasons, or we might obey it because we recognise that
other people matter – they have interests just as we have interests. Goodness is a
quality of character, whereas rightness is a quality of behaviour. For this reason, it
would be better to use a different label to that of ‘harmless wrongdoing’.
In Mill’s lifetime a view was articulated – by James Fitzjames Stephen (1993,
originally published 1873) – that to permit an ‘immoral’ act is equivalent to allowing
an act of treason to go unpunished: the good of society was at risk. This view was
rearticulated in the 1960s by Patrick (Lord) Devlin (1965) in response to the
recommendation of a commission (Wolfenden, 1957) that British laws on
homosexuality should be liberalised. Devlin argued that there was a ‘shared morality’
and that permitting ‘immoral acts’ in private threatened that morality (Devlin, 1965:
13–14). There was a danger of social disintegration. At first sight, Devlin’s argument
appears simply to be the claim that no action is completely self-regarding, and, of
course, we have discussed a revised Millian response, which is to suggest that
fundamental interests must be at stake for an action to be deemed harmful. Devlin’s
argument is, however, a little more sophisticated: actions may not have discernible
harmful effects, but cumulatively they erode social norms, and that erosion is
seriouslyharmful. However, this still seems to be concerned with harm. A number
of objections have been raised to Devlin’s argument (what has become termed the
‘social cohesion thesis’): (a) he was wrong about homosexuality; (b) is there really
a shared morality? Don’t people disagree about morality? (c) even if there is a shared
morality does permitting ‘private immorality’ undermine it?
What is worth reflecting on is whether there is something in Devlin’s argument
that cannot be captured in a debate dominated by the concept of harm. The problem
Chapter 2 Freedom 49