Joel Feinberg

John Stuart Mill, in On Liberty (1859), gives a staunchly liberal answer, that the only kind of conduct that the state may rightly criminalize is conduct that causes harm to others.

Though Feinberg, who had read and re-read Mill's classic text many times, shared Mill's liberal leanings, he postulated 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 sought to develop and defend a broadly Millian view of the limits of state power over the individual.

In the process, he defended standard liberal positions on topics such as suicide, obscenity, pornography, hate speech, and euthanasia.

He also analyzed nonmaterial concepts such as harm, offense, wrong, autonomy, responsibility, paternalism, coercion, and exploitation, conceding in the conclusion to the final volume that liberalism may not be fully defensible and that liberals ought to concede that there are rare cases where certain kinds of moral harms and harmless immoralities should be outlawed.

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."

Feinberg argues that even left-leaning, highly tolerant liberals must recognize that some forms of harmless but profoundly offensive conduct can properly be criminalized.

Joel Feinberg (October 19, 1926 – March 29, 2004) 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 as well as individual rights and the authority of the state.

Feinberg was one of the most influential figures in American jurisprudence of the last fifty years.

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.

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:

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 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."

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."

To pursue only happiness, then, is to fail utterly to achieve it.

In a 1974 paper, Feinberg addresses the possibility of legal rights for animals and future generations.

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.

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."

Feinberg's goal in the book is to answer the question: What sorts of conduct may the state rightly make criminal?