'Legal Responses to Consensual Sexuality between Adults: Through and Beyond the Harm Principle' (University of Cambridge Faculty of Law Research Paper No. 46/2013) by Matthew H. Kramer revisits HLA Hart's arguments in his 1963
Law, Liberty, and Morality.
It seeks to reinforce and extend Hart's liberal positions by offering lines of reasoning that are quite different from his, and by highlighting the inadequacy of John Stuart Mill's harm principle for coming to grips with contemporary issues such as the introduction of same-sex marriage.
Kramer
comments
In the present essay, I shall reassess some of Hart’s arguments in Law, Liberty, and
Morality. My aim is predominantly constructive, in that this essay will seek to reinforce and
extend Hart’s liberal positions (though often not the specific arguments with which Hart
endeavored to support those positions). I will not generally gauge the accuracy with which
Hart represented the views of his opponents, nor will I attempt to engage sustainedly with the
myriad writings on paternalism that have emerged during the five decades since Hart published his book on the matter. Instead, this essay will intermittently make reference to a few of the elements in the taxonomy of responsibility with which it has begun. Some of the disputation in Law, Liberty, and Morality can fruitfully be understood as centered on questions of responsibility.
He offers a taxonomy -
The property of responsibility can obtain in many different forms. Among those sundry
kinds of responsibility are the following six:
1. Responsibility as Attributability. Somebody is responsible for some instance(s) of
conduct if the instance(s) of conduct can correctly be attributed to him (usually for purposes
of commendation or condemnation).
2. Responsibility as Prudence or Upstandingness. Somebody is responsible if she is
generally disposed to act prudently, or if she generally behaves upstandingly (especially as a
member of some community or group, whose good she generally seeks to further).
3. Responsibility as Obligatedness. Somebody is responsible for a certain task or
objective if he is obligated to perform that task or to fulfill that objective.
4. Responsibility as Due Care. Somebody exhibits responsibility in her undertaking
of a certain activity if she acts in a duly careful manner when she proceeds with it.
5. Responsibility as Accountability. Somebody is responsible for the fulfillment of a
certain objective or the emergence of a certain state of affairs if she can properly be held to
account for the non-fulfillment of that objective or the non-emergence of that state of affairs.
6. Responsibility as Custodianship. Somebody is responsible for another person if he
is obligated to look after that other person’s interests in a variety of ways.
These six types of responsibility are of course not mutually exclusive. In particular,
someone responsible in the third sense is almost always responsible in the fifth sense as well,
and responsibility in the fourth sense is often a situation-specific manifestation of
responsibility in the second sense. Still, the distinctions among these types can serve to
underscore the multifacetedness of the phenomenon of responsibility. The multifacetedness
of that phenomenon becomes even more evident when we attend to distinctions within each
of the six categories above. For example, responsibility as attributability can be a causally
grounded property or a normatively grounded property; it can derive from the direct causal
involvement of somebody in a certain set of events, or it can derive from a normative
relationship between somebody and some other person(s) or animal(s).
Kramer goes on to argue
since the harm principle alongside the authorization/toleration distinction is consistent with the levying of criminal sanctions in this context, anyone who wishes to advocate the introduction of same-sex marriage ─ and to assail any criminalization of the conduct of homosexuals who seek to wed each other ─ will need to go beyond the harm principle.
The central ethical value which militates in favor of the introduction of same-sex marriage is that of equality. When the state confers its imprimatur (responsibility qua attributability) on heterosexual unions while it withholds that imprimatur from any homosexual unions, it is pro tanto treating homosexuals as second-class citizens. Declining to extend authoritative recognition to any loving and committed relationships between homosexuals, the state thereby treats those relationships as inferior to the loving and committed relationships between heterosexuals that are authoritatively recognized through marital rites. Although individuals in their private capacities should be legally at liberty to harbor the invidious attitudes embodied in such a discriminatory policy, the legitimacy of any public institution depends on its prescinding from those attitudes. Whereas the harm principle does not in itself disallow the inflection of public policies by such prejudices, the value of equality does.
Given that the value of equality is the fundament of every government’s moral obligation to treat same-sex couplings on a par with heterosexual couplings, the rationale for the extension of the institution of marriage does not transfer straightforwardly to polygamous unions. Notwithstanding that the implications of the value of equality have been discussed above as a matter of uniform treatment at the hands of public officials, that very value sometimes militates against such uniformity ─ because principles of equality disallow any public policy that foreseeably entrenches broad patterns of domination in the society at large. Now, although polygamous unions are not indisseverably connected to the subordination of women as a logical matter, there are strong historical connections. In traditions (such as Islam and Mormonism and Biblical Judaism) where polygamy has been common, it has been strongly associated with male dominance. Hence, when someone insists that governments are morally obligated by principles of equality to recognize same-sex marriages on the same terms as heterosexual marriages, he or she is not perforce committed to the additional proposition that governments are morally obligated to recognize polygamous marriages. The truth-value of that additional proposition hinges on complex empirical and normative matters that lie well beyond the scope of this essay. For example, one key question is whether polygamous unions recognized as marriages would tend to become egalitarian de facto as well as de jure through a legal system’s assignment of egalitarian packages of rights and responsibilities to the parties in each of those unions. Because such questions cannot be explored at all in this essay, the proper status of polygamous arrangements should be left unsettled here. (Worth noting briefly, however, are two points. First, someone who favors the legal recognition of certain polygamous unions as marriages does not have to contend implausibly that such recognition would render every polygamous marriage egalitarian de facto. After all, it is not the case that every monogamous heterosexual marriage in Western countries is egalitarian de facto. Second, in Western countries until quite recently and in much of the world outside the West to the present day, the institution of monogamous heterosexual marriage has in fact been strongly inegalitarian. Within Western countries, the evolution of the de-facto character of that institution in an egalitarian direction has undoubtedly been partly due to the evolution of its de-jure status in such a direction.)
At any rate, even if one concludes that no polygamous unions should be legally recognized as marriages in a particular jurisdiction, one can rightly maintain that efforts by polygamists to call down the imprimatur of the law on their domestic arrangements should not be subjected to criminal sanctions. In the absence of previous attempts by some or all of the parties involved, it is enough if any such effort is foiled through the nullity of the legal seal of approval which the parties have sought to obtain. Moreover, if the concerns over the inegalitarian impact of the recognition of polygamous marriages can be overcome, legal powers to enter into such marriages should no longer be withheld from sane adults who are consentingly disposed toward such arrangements.
Kramer concludes -
Although this essay has ultimately moved quite a long way from Hart’s concentration on the harm principle, my invocation of the value of equality ─ along with my invocation of the distinction between toleration and authorization ─ is of course consistent with Mill’s position. My reasoning goes well beyond the harm principle, but is not at odds with it. What my closing discussion has shown is not the incorrectness of Mill’s precept; that precept is impeccable as far as it goes. Rather, what my closing discussion has shown is that his harm principle in itself does not go nearly far enough to deal adequately with the intricacies of the law’s proper regulation of consensual sexuality. After all, as has already been emphasized, that principle simply lays down a necessary condition for the moral legitimacy of any proscriptions imposed by a system of legal governance. It does not per se go any distance toward prescribing the ways in which the law should recognize or authorize various modes of conduct in order to treat people as equals. It does not per se prescribe how the law should bestow its imprimatur to ensure that people are treated with equal respect and concern de jure and to promote the treatment of them with equal respect and concern de facto. Hence, solid though the harm principle is as a precept of political morality, it is badly in need of supplementation by other tenets of liberal democracy. Hart was correct to invoke it, of course, but he did not fully grasp the limitedness of the guidance which it pro
