Legal moralism is a bad thing, but how bad is it really?
Here are some widely-accepted and well-respected ethical and legal philosophical material to look through.
My philosophy more or less aligns with that of John Stewart Mill and H.L.A. Hart.
The “Harm Principle” trumps the concept of legal moralism in just about every way possible.
This isn’t to say that morality has no place in criminal law whatsoever, it simply states that prohibitions and their enforcement must be backed up and justified by the prevention or punishment of harm.
In a civilized and rational society, the government has no greater purpose than to ensure that the rights of its people, with respect to the majority by way of the individual through pluralism.
In spite of its albeit fallacious criticisms levied by conservative scholars and jurists, I believe that the harm principle is a sound, sturdy, and sensible grounding philosophy when it comes to legal matters and criminal law.
“Harm” has a fairly objective definition but a subjective application, which is where many conservatives levy their criticisms.
But in reality, it’s painfully obvious that their critiques lack merit because they’re dodging the harm question entirely, rather than trying to understand how it is defined.
How does this relate to the cancer that is the obscenity doctrine and arbitrary, unfounded and prejudiced restrictions on consensual adult sexual conduct and pornographic material?
As in any way that the harm principle may relate to issues of free speech and expression, it disavows and prohibits them unless they bare an undeniable, intrinsic link to harm.
Pornography and sex dolls, even those of a pedophilic nature, lack this unless a real child is exploited or victimized.
This is the philosophy behind Ashcroft v. Free Speech Coalition, and why the obscenity doctrine must be abolished.
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In any case, the enforcement of morality for its own sake is innately immoral, especially in areas or contexts relating to freedom of speech where doing so undermines the very morals one may be trying to enforce.
It’s very easy for prejudice to masquerade as morality, especially in contexts where people are offended and are unable to look upon the issue or material in good faith. Keeping to the free speech principle sidesteps these issues entirely while also guaranteeing that the individual right to free speech, expression, and consciousness goes unfettered.
The obscenity doctrine is a cancer and remains incompatible with this goal and function.
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