\documentstyle[12pt,doublespace]{article}
\setlength{\parindent}{0.3 in}
\setlength{\oddsidemargin}{0.25 in}
\setlength{\textwidth}{6 in}
\setlength{\topmargin}{0.25 in}
\setlength{\headheight}{0 in}
\setlength{\headsep}{0 in}
\setlength{\textheight}{8.25 in}
\setlength{\footskip}{0.5 in}
\setlength{\footheight}{0.25 in}

\title{A Utilitarian Evaluation of the Criminalization of Immoral
Conduct}
\author{Marc Horowitz}
\date{October 6, 1989}

\begin{document}
\begin{singlespace}
\maketitle
\end{singlespace}

Criminalization of immoral conduct, according to the principles of
utilitarianism, is not legitimate.  Such criminalization would, in
general, lessen the total aggregate utility.  This conclusion can
be reached by applying either Bentham's or Mill's definition of
utility.  For this argument, I shall assume that criminialization is
passing a law against a specific act.

In {\em The Principles of Morals and Legislation}, Bentham determines
that matters of ``private ethics'' are not valid targets of
legislation.  Only the individual is qualified to decide what will
most increase his own personal happiness, and, in private life, there
are no circumstances which should cause a person to not do what he
thinks will increase his own happiness.  In addition, there are
definitely circumstances for which legislation is clearly
inappropriate.  

Specifically, legislation is inappropriate where punishment would be
unprofitable, i.e. where the punishment is more evil than the act it
is supposed to prevent.  Most laws regulating moral conduct fall under
this classification.  A punishment has to be so severe to prevent a
person from committing an act he felt was not immoral that the pain
caused by the punishment would be far worse than the pain caused by
the act itself.  In cases where the morally right behavior seems to be
obvious for all competent adults, the legislator may be correct in
encouraging (but not forcing) a certain mode of behavior.  However, he
will always be under attack for any presumption about morals that he
makes, and can never hope do to more than endorse a specific mode of
behavior.  Legislation is also inappropriate whenever it would be
ineffectual.  Discovering infractions of laws regulating morality,
especially private morality, would take an inordinate amount of time
and energy, and would still be mostly ineffective.

For example, it would be wrong to control consumption of alcohol in
private.  The effort it would take to discover infractions of the law,
combined with the severity of the law, would be excessive.  In
addition, a law such as this would probably make a large portion of
the populace very unhappy, having this freedom taken away.  Although
after Bentham's time, Prohibition in the 1920's is a perfect example
of how laws regulating morality can fail completely.

Bentham does not discuss criminalization of public morality.  It
seems to me that if an immoral act adversely affected enough people,
then criminalization of that act would be justified.  To affect a
large number of people, the act would have to be easy to detect.
The pain caused by the punishment in this case would be offset by the
lack of pain of those who would not be adversely affected by the
action.

Cases of public morality tend to be controversial, as there is almost
never a consistent view of right and wrong in a society.  A good
example might be pornography.  Having pornography in the magazine rack
of a drug store, for instance, would make it difficult for people to
ignore it, causing pain to those who are offended by pornography.
Making display of pornography illegal would solve this problem, but it
would decrease the pleasure of those who purchase pornography, and of
people who are offended more by the abridgement of the right to have
pornography displayed than they are by the pornography itself.  Of
course, both positions are supportable, and determining the change in
utility that this kind of legislation would cause would be difficult,
if not impossible.

Mill would arrive at the same conclusion as Bentham about the
criminalization of immoral conduct, but he would use a different
argument.

\begin{quotation}
\begin{singlespace}
The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm
to others. His own good, either physical or moral, is not a sufficient
warrant.\footnote{Mill, {\em On Liberty}, chapter 1}
\end{singlespace}
\end{quotation}

This is the basis of Mill's harm principle.  The application is
simple.  Only actions which are harmful to others can be legislated
against.  Moral questions are always questions of opinion, and no
government has the right to abridge the opinion of its constituents,
as opinions can never cause harm.  The only coercion allowed is that
which prevents acts harmful to others.

Another argument which Mill might make is that the definition of
``moral'' is too fluid.  The morality a society would use to make laws
would probably be the morality which most of the people agreed on.
Mill denies the government any right to impose any opinion, even if
all of the society except one individual had that opinion.  ``We can
never be sure that the opinion we are endeavouring to stifle is a
false opinion; and if we were sure, stifling it would be an evil
still.\footnote{Mill, {\em On Liberty}, chapter 2}'' Mill makes a
distinction between opinion and action: an opinion is free only until
it causes harm to another individual through action.

To use the same examples as above, Mill would say that controlling the
consumption of alcohol is illegitimate.  My consumption of alcohol
causes no harm to others.  If I do not exercise this right in private,
and I do cause someone harm, then it is legitimate to impose
restrictions on my actions.  The question of the morality of drinking
is a matter of opinion, one which every person has the right to decide
on his own.  Regulating on the basis of morality simply cannot happen.
Questions of public morality, such as pornography, come to a similar
conclusion.

The one subject which Mill does not discuss is an exact definition of
harm.  Is personal offense considered harm?  It seems that in order to
preserve maximum liberty, personal offense cannot be considered a
harm, as almost and opinion or action will offend someone.

I think that the fact that utilitarianism presents a bar to the
criminalization of moral conduct is a mark in favor of it.  I believe,
for reasons that seem very much like Mill's, that moral decisions
should be left to the individual, not the society.  Many of the
actions which society, or more often, some part of society, considers
immoral are only immoral in the immediate context of those making the
observation.  Cases such as abortion or birth control are primary
examples of this.  Whereas an individual may decide that pornography,
for example, is morally wrong, this gives him no right to impose that
decision on others.

\end{document}

