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Durkheimian utilitarianism and legal moralism

Maciej Juzaszek

Abstract

The paper concerns the classical problem of legal moralism, i.e. whether enforcement of morality by the state is justified, even if nobody is harmed. In the article, I analyze Durkheimian utilitarianism, Jonathan Haidt’s normative theory of public policies and the law, based on his psychological moral foundations theory. First, I describe Durkheimian utilitarianism and argue how it can be understood as a theory of legal moralism. Then, I subject it to criticism, using five challenges developed by Petersen (2019): the challenge from relativism, the empirical challenge, the no difference challenge, the levelling-down challenge, and the weighing challenge. It leads to the conclusion that Durkheimian utilitarianism, even if it deals with some of the challenges, still suffers from problems that do not allow it to be a fully developed theory of legal moralism.

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1 Introduction

1In 1959, Lord Patrick Devlin (1965) delivered a Maccabean lecture on jurisprudence at the British Academy under the title The Enforcement of Morals. The lecture was a reaction to the publication of the Wolfenden Report, which proposed the decriminalization of male homosexual conduct in Great Britain. This moment is considered the beginning of the modern discussion on whether the state has a right to enforce morality, mainly by criminalizing immoral acts, even if they cause no harm. The doctrine giving a state such a right is called in jurisprudence legal moralism. It involved Devlin and Herbert Hart (1967; see Bassham 2012) for the first few years. However, after criticism from authors such as Ronald Dworkin (1965) and Joel Feinberg (1990), legal moralism was treated with at least as much reserve as an illiberal and unpopular position. Although in a liberally oriented philosophy of law it remains a minority view, new moralistic theories and arguments supporting them have been constantly developed by, among others, Robert P. George (1995), John Kekes (2000), Michael Moore (1995) and most recently, Antony Duff (2018).

2To find a common thread among various theories, I adopt a similar understanding of legal moralism as Thaysen (2015: 190), who defines it as a doctrine according to which “[f]or any X, it is always a pro tanto reason for justifiably imposing legal regulation on X that X is morally wrong (where ‘morally wrong’ is not conceptually equivalent to ‘harmful’).” As Thaysen (2015: 191–199) shows, such a definition allows interpreting legal moralism broadly to include many different approaches, not only those referring to criminalizing particular types of offences just because they are immoral but also those enforcing morality by the tax law, contract law or family law. In this paper, I discuss the theory of Durkheimian utilitarianism. Although it is not directly a theory of criminalization but a normative theory of law and public policies, I believe it may be a source of possible moralistic justification for the criminalization of wrongdoing because it gives pro tanto reasons for criminalization. The creator of this theory is not a philosopher or legal scholar but a well-known American moral psychologist, Jonathan Haidt. He first presented the Durkheimian version of utilitarianism in his famous book, The Righteous Mind (2013).

  • 1 Good example is a reference to Durkheim’s theory. Haidt’s goal is not to capture the real essence o (...)
  • 2 In this paper, I made a silly slip, labelling Durkheim as German, while, of course, he was French.
  • 3 To be conceptually clear: when I refer in the paper to the Durkheimian version of utilitarianism, I (...)
  • 4 What is important, in the paper I do not present my personal view on whether Durkheimian utilitaria (...)

3Unfortunately, Haidt explored his normative ideas in a very rudimentary and sweeping way.1 Thus, in this paper, I discuss its charitable interpretation (offered and discussed in detail elsewhere (Juzaszek 20222), which I call, using the term proposed by Haidt himself, Durkheimian utilitarianism.3 Furthermore, the paper aims to offer new arguments in discussing the moral justification for the legal enforcement of morality to make it ongoing, which is a positive thing, no matter what position one takes. Supporters of legal moralism can find new arguments backing their position. In contrast, those who deny legal moralism can confront their beliefs with opposing arguments and refine their theory so that it is more resistant to potential criticism.4

2 What is Durkheimian utilitarianism?

  • 5 Similar theory is e.g. Krzysztof Saja’s (Saja 2019, Saja 2020) Institutional Function Consequential (...)

4Haidt (2013: 359) defines the Durkheimian version of utilitarianism as “utilitarianism done by somebody who understands human groupishness.” It is a normative ethical theory addressed to law- and policymakers (in contrast to normative ethics for individuals) concerning the creation and implementation of laws and public policies.5 As Haidt (2013: 441) explains,

I don’t know what the best normative ethical theory is for individuals in their private lives. But when we talk about making laws and implementing public policies in Western democracies that contain some degree of ethnic and moral diversity, then I think there is no compelling alternative to utilitarianism. The important part I think Jeremy Bentham was right that laws and public policies should aim, as a first approximation, to produce the greatest total good.

5Contrary to Bentham’s theory, the Durkheimian version of utilitarianism is rule utilitarianism, whose primary focal points are rules of conduct (not the acts of individuals, as in act utilitarianism). These rules are justified by constituting well-being (Haidt 2013: 441), and they justify the state's and authorities’ actions. Moreover, Haidt declares himself as a proponent of value pluralism, as he follows Berlin (1969) and Shweder (1991) in “believing that there are multiple and sometimes conflicting goods and values” (Haidt 2013: 441). Thus, Durkheimian utilitarianism treats well-being as constituted by the plurality of values, taking Haidt’s Durkheimian version of utilitarianism as a starting point.

6We could interpret this value pluralism in two ways. First, we may say that instrumental values are just means to maximize one’s well-being, which is the ultimate, non-instrumental value. But that means that well-being is built up by these instrumental values, which can be attained over time, similarly to pleasure in hedonistic theories. The more pleasure, the higher one’s well-being is. And if we assume that there are many instrumental values, then one can gain well-being just by attaining one of them in a significant volume while ignoring the others. According to the second interpretation, values are non-instrumental and good in themselves, together constituting one’s well-being. That means that well-being is not a different, higher value achieved from calculating instrumental values but is a state in which all non-instrumental values are ensured. One cannot achieve well-being when these non-instrumental values are ignored.

7I believe that Durkheimian utilitarianism assumes the latter view. Considering that the ideal of Durkheimian utilitarianism is a society that includes all of the Moral Foundations in its public policies and regulations (contrary to societies based on individualistic or binding ones). Therefore, in this interpretation, Moral Foundations are non-instrumental values which constitute one’s well-being (cf. Griffin 1989: 44-55). The mechanism behind it is explained later in the Durkheimian part. However, the question remains whether there is only one, the best possible equilibrium of non-instrumental goods, which constitutes well-being (monistic view) or whether there are many possible equilibriums that all constitute similar well-being (pluralistic view). Again, considering Haidt’s central theme that the moral system of a particular society is grounded in the conditions this society lives in and that different moral systems are based on various equilibriums of moral foundations are equally good, I believe Durkheimian utilitarianism supports the pluralistic view. Therefore, there are many equally good equilibriums of non-instrumental Moral Foundations. But this issue will come back later.

8Few theories combine both utilitarianism and pluralism of non-instrumental values, and those that do usually refer to so-called objective lists of goods (e.g. Griffin 1986 or Fletcher 2013). Referring to Crisp’s (2006: 102-103) distinction between enumerative and explanatory objective list theories, Durkheimian utilitarianism is the latter. It not only enumerates the goods that should be pursued, as enumerative theories do but also explains the higher purpose of placing goods on the list. The explanatory nature of Durkheimian utilitarianism is a form of moral perfectionism based on realizing a specific vision of human nature. What goods are on the list? To explain it, I consider two other Haidt’s ideas: a) moral foundations theory to find out which values are on the list and b) homo duplex view of human nature to justify why these particular values are on the list.

  • 6 The status of liberty/oppression is, according to Haidt, dualistic, depending on its interpretation

9Moral foundations theory is a psychological theory developed by Haidt to explain the diversity of moralities across societies. It proposes that there are “cognitive modules upon which cultures construct moral matrices” (Haidt 2013: 146). These modules are called moral foundations, and moral systems worldwide are built upon them. They evolved as responses to adaptive challenges (e.g. reaping benefits from relationships) and initially reacted to original triggers (e.g. cheating) by activating characteristic emotions (e.g. anger). Nowadays, they react with the same emotions to current triggers (e.g. broken vending machines). They are also related to moral virtues (e.g. justice or equality). All the examples mentioned above refer to a foundation of fairness/cheating. The other moral foundations distinguished by Haidt are care/harm, loyalty/betrayal, authority/subversion, sanctity/degradation and liberty/oppression (see Haidt 2013: 146). Fairness/cheating and care/harm are called individualist foundations, while loyalty/betrayal, authority/subversion and sanctity/degradation are binding moral foundations.6 According to Haidt, Western liberal cultures are more focused on the former, while more conservative societies (he mentions, e.g. India) are more focused on the latter.

  • 7 Importantly, I do not claim that Haidt himself accepts them, they are the assumptions underlying th (...)

10Significantly, moral foundations theory limits our moral domain to values that are eventually reduced to moral foundations. As a human species, we treat certain things as moral values (e.g. justice) and not others (e.g. having blue eyes) because we evolved in that direction. In his criticism of Sam Harris' theory, Haidt (2014) claims that there is a type of facts significantly different from the facts of science, which he calls "emergent culture-specific anthropocentric truths” and believes that “moral truths are of this sort”. Based on this metaphysical claim, let me present two main philosophical assumptions underlying Durkheimian utilitarianism.7

  • 8 I assume that Haidt is right about the catalogue of moral foundations. However, I am taking into ac (...)

11First, moral truths are not universal truths that exist independently of human beings (strong-mind independence). However, they also are not subjective; they depend only on an individual’s beliefs (strong mind-dependence). They are objective in the sense of objectivity, “on which these theorists insist when they ascribe a dispositive fact-constituting role to collectivities while denying any such role to separate individuals” (Kramer 2009: 4). Second, there is a limited moral domain beyond which humans cannot reach. The only values we know as humans are moral foundations that evolved with us or their derivatives (i.e. values that can be either reduced to moral foundations or instrumental in relation to them).8 This means that if the environmental conditions were different, completely different moral foundations might have developed, and cultures and societies could have adopted moral foundations that are entirely different from those adopted today. Although moral foundations are deeply embedded in our minds, it is not impossible that, in a few hundred years, evolution will cause moral foundations to change. Maybe there will be more (or fewer) of them; maybe they will be different. But now they are all we have.

12From a descriptive point of view, the function of morality is, as Haidt (2013: 314) argues, to suppress or regulate self-interest and make cooperative societies possible. However, from a normative point of view, morality is also defined by its function, which is the realisatization of human nature, which leads to human well-being. The version of human nature that Haidt (2013: 344) adopts is “a view of humankind as being Homo duplex [...], which means that we humans need access to healthy hives to flourish (that’s the Durkheimian part).” He claims that lawmakers and policymakers must recognize this because it will help people achieve a positive, utilitarian goal—it will make them flourish and ultimately achieve their well-being. That is why, when Haidt (2013: 316) presents his view of the normative theory of public morality, he immediately adds, “I just want Bentham to read Durkheim and recognize that we are a homo duplex”.

13Haidt believes that classic utilitarianism does not lead to the best possible results because it treats people as one-dimensional and ignores their social aspects, represented by binding moral foundations. To explain this idea, Haidt refers to the concept of the homo duplex, put forth by Durkheim (2005a: 44) in the following way:

[W]e are formed by two parts, and are like two beings who, even in their association, are made of very different elements and move us in opposite directions […] the double existence that we lead […] one purely individual, which has roots in our organism, the other social, which is nothing except an extension of society.

14Haidt’s interpretation is that human nature simultaneously exists on two levels because they are driven by two types of impulses or sentiments: selfish and social. The former are individualist instincts, and the latter are the effects of society’s influence on the individual. Therefore, if selfish feelings, such as honour, respect, attachment or fear, can be explained by natural selection at the individual level, social sentiments can be explained by natural selection at the group level. In this context, collective sentiments are critical, activated by binding moral foundations.

15A human, as homo duplex, needs the stimulation of their social sentiments from culture, society or state. However, suppose these structures withdraw from the moral sphere, leaving individuals with only their moral compass and relations with their immediate surroundings, family or friends. In that case, this may lead to a disturbance of the fragile balance of human nature. According to Durkheim (2014), the process of changing society from mechanical solidarity (similarities between individuals and standard social norms for everyone) to organic solidarity (differences between individuals, different moral norms and the prioritization of individual reflection) can lead to a. state of anomie (or anomy), i.e. a condition of society in which it is uncertain which social rules should be followed because the old ones do not really fit into the new social reality, and new ones have not yet formed. As Durkheim (2005b: 214) writes:

[a]t the very moment when traditional rules have lost their authority, the richer prize offered these appetites stimulates them and makes them more exigent and impatient of control. The state of de-regulation or anomy is thus further heightened by passions being less disciplined, precisely when they need more disciplining.

16People who experience anomy feel detached from society and may not see norms and values ​​that they think are important. Feeling useless and deprived of an essential role in society can expose them to deviations, mental disorders, or even suicide. Durkheim (2005b: 219) claims that

[a]nomy, therefore, is a regular and specific factor in suicide in our modern societies; […]. The third sort of suicide, the existence of which has just been shown, results from man’s activity’s lacking regulation and his consequent sufferings. By virtue of its origin we shall assign this last variety the name of anomic suicide.

17Durkheimian utilitarianism proposes that responding to anomy should involve enforcing laws and policies that implement binding foundations to improve social cohesion and, as a result, individuals’ identity.

3 Durkheimian utilitarianism as legal moralism

18Considering that Durkheimian utilitarianism postulates the implementation of a specific moral system (based on Moral Foundations and a particular vision of human nature) into public policies and legal regulations, it may be treated as a theory justifying the enforcement of morality by the law. First, however, an important point needs to be made. Durkheimian utilitarianism aims to promote well-being in society as a whole. It means that it does not justify particular norms of policies independently of each other; it validates the whole system aimed to make human beings flourish. Thus, a particular element of the system does not need to be justified by all Moral Foundations altogether (both individualistic and binding); some may be based on Care/Harm, others on Sanctity/Degradation. These various Moral Foundations just need to be reflected and balanced in the system taken as a whole, creating equilibrium. For example, let us imagine a fictional state - the Republic of Polavia, whose criminal law is built according to Durkheimian utilitarianism. Most criminal offences are justified by the harm principle (e.g. murder or theft), understood traditionally in Mill’s terms, representing the Care/Harm foundation. However, in Polavian criminal law, there are also offences based on other moral foundations, such as the prohibition of consensual incest between adults (based on Sanctity/Degradation), the prohibition of destroying the national flag (based on Authority/Subversion) or conspiracy with national enemies (on Loyalty/Betrayal) Thanks to that, the Polavian legal system is harmonious because, as a whole, it balances all the moral foundations according to homo duplex human nature and constitutes the well-being of Polavian citizens.

19Thus, in the paper, I will focus on the version of legal moralism rising from Durkheimian utilitarianism (hereafter called DU-legal moralism), which claims that, for any X, there is always a pro tanto reason for justifiably imposing legal regulation on X iff X is morally wrong in society A (where “morally wrong” is understood as conflicting with the moral system based on a particular equilibrium of Moral Foundations in society A and is not conceptually equivalent to “harmful”) and that criminalizing X will complement the system by helping human nature (i.e. homo duplex) to flourish and as a result contribute to the well-being of the members of society A.

4 Challenges

20The question is whether DU-legal moralism is a reasonable idea. To answer it, I will refer to a set of possible challenges to moralistic criminalization theories provided by Petersen (2019: 57-91). These are “the challenge from relativism,” “the empirical challenge,” “the no difference challenge,” “the levelling-down challenge”, and “the weighing challenge.” I will confront Durkheimian utilitarianism with them not only to identify the possible weaknesses of the theory but also to better understand what DU-legal moralism is.

4.1 Challenge from relativism

21The challenge from relativism concerns which kind of morality the law should enforce. According to Thaysen (2015: 191-195), we may distinguish between legal moralisms referring to positive morality and those referring to critical morality. Such a distinction is taken from Hart (1963: 20), who wrote about descriptive, positive morality (i.e. moral principles actually held by a given community) and normative, critical morality (i.e. correct moral principles that serve to criticize positive morality). The following example may illustrate this distinction. Forty years ago, drunk driving could be construed as a part of positive morality in the Polish People's Republic; many people believed there was nothing wrong with such behaviour. However, it is wrong according to critical morality. But Polish positive morality has changed, and today there is no such discrepancy between what is morally wrong (according to critical morality) and what is believed to be morally wrong (according to positive morality).

22If we believe that legal moralism refers to positive morality, it may lead to moral relativism. In such a case, the law should enforce whichever morality is shared in a given community, even if it seems wrong according to the positive morality of another community or vision of critical morality. For example, some societies accepted slavery, racial segregation or discrimination against women as part of their moral systems, and one may say they had a right to enforce these convictions legally. This conclusion, however, opposes our basic intuitions that slavery, racial segregation or discrimination against women are morally wrong and should never be executed by the law.

23This argument can be used against, e.g. Devlin’s theory of legal moralism. Legal moralists can deal with the challenge from relativism by claiming that it is not positive morality but critical morality that the law should enforce. In such a case, legal regulations should reflect what is right and wrong from a critical point of view rather than what people think is right or wrong. For instance, we may claim that homosexual acts should not be criminally prohibited, even in a society of homophobes (who are morally mistaken), or that criminalization of drunk driving was morally justified in the Polish People’s Republic, even if people believed (mistakenly) otherwise.

24DU-legal moralism claims that the law should advance Durkheimian utilitarianism, a theory of critical (public) morality that considers how legal regulations and public policies should be shaped to make homo duplex flourish. It does not propose to enforce any particular version of positive morality, so it seems it should be immune to challenge from relativism. However, there is only one set of rules which should be implemented in every society. Even though Durkheimian utilitarianism assumes that all moral systems need to be based on all Moral Foundations (both individualistic and collective), just in different configurations and emphases, every society can have its own best equilibrium of Moral Foundations. Such an equilibrium should best fit a community's characteristics and the environment in which it emerged and developed. Therefore, according to DU-legal moralism, society X’s public policies and legal regulations should be based on the equilibriumx of all Moral Foundations, constituting the well-being of X’s members to the greatest extent. But similarly, society Y’s public policies and legal regulations should be based on the equilibriumy of all Moral Foundations, constituting the well-being of Y’s members to the greatest extent. But such a formulation of Durkheimian utilitarianism meets Chris Gowans’ (2021) definition of (metaethical) moral relativism: “The truth or falsity of moral judgments, or their justification, is not absolute or universal, but is relative to the traditions, convictions, or practices of a group of persons”.

  • 9 Or equilibriums (equlibriumx1, equlibriumx2 etc), if we accept the possibility that there are vario (...)

25Equilibriumx and equilibriumy are equally good from the perspective of Durkheimian utilitarianism. This is because they are determined by how well it constitutes well being of people in X or Y.9 But, on the other hand, there need not be objectively good equilibrium for all societies; each can have its own. There is also no meta-equilibrium or meta-rule which would solve potential conflicts between the different equilibriums of Moral Foundations. For example, we can imagine that the characteristics of society X determine the equlibriumx dominated by Care/Harm. Thus, according to equlibriumx, consensual homosexual acts should not be criminalized. At the same time, the characteristics of society Y determine the equlibriumy dominated by Sanctity/Degradation, according to which consensual homosexual acts should be criminalized. And society X should shape their criminal law policy following equlibriumx and society Y equlibriumy. Thus, X members will inevitably believe that members of Y are wrong (and vice versa). Still, it is not even reasonable to ask whether any of them are correct within Durkheimian utilitarianism. That means that DU-legal moralism is exposed to the challenge from relativism.

4.2 Empirical challenge

26The next challenge is an empirical one, derived from Hart’s criticism of Devlin. According to Hart’s interpretation of Devlin, immoral conduct threatens society's cohesion, and its proliferation may lead to societal collapse (Hart 1967: 1). Society, therefore, has a right to protect itself by enforcing morality. Devlin (1965: 13) argued that “[t]here is disintegration when no common morality is observed, and history shows that the loosening of moral bonds is often the first stage of disintegration” (called “disintegration thesis”). Criticizing this position, Hart (1967: 2–3) identified two possible interpretations. According to the first (called “definitional”, the statement that morality is important for society is a necessary truth since society is defined by morality. A society equals its morality. This means that if someone’s actions cause the breakup of moral norms in a given community, they also cause the breakup of society itself. Hart argued that this version of the argument would lead to the absurd conclusion that no change in morality can occur, as it would lead to creating an entirely new society. Although Devlin thought of society as static, Hart (1983: 257) believed that morality constantly evolves. According to the second (called “empirical”) interpretation of Devlin’s disintegration thesis, committing immoral acts leads to the loosening of interpersonal ties in society and, eventually, to the deterioration of the condition of society. Importantly, this is an empirical claim that can be verified. For instance, historians can argue that mali mores (i.e. bad customs) impacted the fall of Rome. Therefore, the empirical challenge points out that legal moralists who make such empirical claims need scientific or historical evidence to support them. And usually they do not offer them. According to Hart, Devlin did not prove that the phenomena he criticized would even contribute to, let alone lead to, the disintegration of society.

  • 10 See Lukes & Prabhat 2012 for criticism of Hart’s interpretations of Durkheim’s thought.

27Interestingly, Hart believes that the empirical interpretation of Devlin’s disintegration thesis aligns with the views of Emile Durkheim. Hart (1967: 7) argues that, according to Durkheim, “[p]unishing the offender is required to maintain social cohesion because the common conscience [was] violated by the offence”. Although Hart notes some differences between Durkheim and Devlin, he believes they have much in common10. Haidt also similarly refers to Durkheim. His Durkheimian version of utilitarianism is embedded in Durkheim’s views on law and morality, or at least Haidt’s interpretation of them. As mentioned before, Haidt refers to Durkheim’s concept of the homo duplex, according to which human nature is dualistic as it has individualistic and collective components.

28In light of this, is DU-legal moralism understood in terms of social disintegration justified? There are reasons to think so. Let me call this interpretation of DU-legal moralism an empirical one. As noted above, Haidt (2013: 260-270), referring to Durkheim, adopted the vision of man as homo duplex and its consequences. He (2013: 313) claims that anomy occurs in a society that no longer has a shared moral order. The cure for this condition may be the introduction (or even restoration) of laws, regulations and public policies that strengthen the collective identity of individuals by enforcing morality based on binding moral foundations. This is a very clear moralistic claim.

  • 11 Haidt (2012: 440) refers there to research on suicide done by Eckersley & Dear 2002.

29Law has the vital function of maintaining social cohesion and suppressing anomy by guiding the individual. According to Haidt’s Durkheimian utilitarianism, fulfilling this function should be done by activating both individualistic and collective emotions, which correspond to the individual and collective aspects of dualistic human nature, from different moral foundations. The law and public policies should enforce not only Fairness/Cheating or Care/Harm foundations (as in liberal legal systems based on the harm principle) but also Loyalty/Betrayal, Authority/Subversion or Sanctity/Degradation, as this increases social cohesion, which will allow people to improve their well-being and flourish. Promoting only one group of moral foundations may lead to negative social phenomena, such as polarization and unconstructive disagreements, as well as an increase in the suicide rate (similar to Durkheim’s original predictions).11

30Haidt’s claims are empirically verifiable. One could study how enforcing different moral foundations increases and decreases social cohesion, polarization and social divisions. Haidt (2013: 100, 186) even provides the results of such research, showing that, for example, polarization in the United States has been increasing. One may claim that the last few years have been a period of the gradual disintegration of American society, which would support Durkheimian utilitarianism and protect it from the empirical challenge.

31This paper is not a place to decide whether there is enough evidence for such a thesis. However, there are at least two issues worth to be raised in this context. First, even if we prove that one society is collapsing because of a lack of harmony between moral foundations, we still need evidence that this is a universal phenomenon. Otherwise, Durkheimian utilitarianism would be a theory only for a particular society, which clearly is not Haidt’s idea. Second, the statement that society is disintegrating is already normative. We need to assume that, at some point, some desired condition of society worsened. However, a positive evaluation of this condition is a matter of the criteria used. For example, suppose we value trust among people. In that case, a society with a high level of interpersonal trust will be positively assessed, and when trust is lost, we may say that the society is disintegrating. At the same time, such a trustful society may be oppressive to its members, and as trust decreases, the liberation of individuals may increase. From another axiological perspective—for example, if autonomy is valued more than trust—such a change may represent not the collapse of the society but success. Therefore, it is difficult to believe that the empirical interpretation of DU-legal moralism is immune to the empirical challenge.

32However, as George’s (1995) theory of legal moralism shows us, disintegration does not need to entail the actual collapse of society. He claimed that disintegration should be interpreted as “the loss of a distinctive form of interpersonal integration in a community understood as something worthwhile for its own sake […] regardless of whether this loss is accompanied by the breakdown of order” (George 1995: 66). Therefore, we should criminalize immoral acts not because they will lead to “real” destruction of the society, but to the loss of an important component of it, which cannot be grasped empirically. Also, such a deficit is inherent even if no individual is harmed. George uses the example of marriage to illustrate this point. According to him, drifting apart spouses in a marriage does not imply a breakdown. Instead, the spouses simply no longer build their lives around common interests or concerns. This means that this inherent goodness of marriage was lost because the relationship has been instrumentalized. Therefore DU- legal moralism may be interpreted another way: it limits society from losing essential foundations and moral diversity or respect for other moral beliefs. This interpretation (let me call it a non-empirical) would mean that Haidt’s claim does not require any empirical evidence and is immune to the empirical challenge.

4.3 No difference challenge

33Another challenge against DU-legal moralism is the no difference challenge, which claims that legal moralism is often just a version of harm principle. Feinberg (1990: 8-10) distinguishes between pure legal moralism, which treats enforcing morality as valuable in itself and justifies the criminalization of immoral acts independently from the harmfulness of these acts, and impure legal moralism, according to which criminalization of immoral acts is treated as an instrument to prevent harm. In the latter case, we can question whether there is any difference between legal moralism and the harm principle. If there is not, why not abandon the notion of legal moralism and accept the harm principle as the ultimate source of justification for criminalization? There are two main arguments for why DU-legal moralism differs from harm principle.

34Firstly, the notion of harm in DU-legal moralism is understood very narrowly, similarly to the classical discussion on harm principle and legal moralism. Therefore, only individuals, not groups or society, can be harmed (or put at risk of harm). It is because only individuals are the bearers of well-being. If one argued that DU-legal moralism is just a broader version of harm principle theory, then one would require to expand the catalogue of harms, including, e.g. group harms. I am sceptical about such a solution precisely because it blurs the lines between different criminalization principles and makes the discussion about legal paternalism or legal moralism irrelevant, reducing everything to a common denominator, namely, harm. Therefore, I assume a very restricted concept of harm here.

35Secondly, according to the definition of DU-legal moralism, the main reason for criminalization is moral wrongness, not harmfulness, which is a result of transgression against Moral Foundations. Lack of such criminalization may cause harms to individuals, but they are merely symptoms of a deeper problem: neglecting human nature and the inability to achieve the complete well-being of the members of society. Let’s imagine a society which implements DU-legal moralism and its doctrine of criminalization. Of course, harm principle will be presupposed because many criminal norms will be based on the Harm/Care foundation, which represents the protection of others from physical and psychological suffering. However, other criminal regulations will be grounded in different Moral Foundations and justified without reference to harmfulness or risk of harm., as in the example of Polavia mentioned in chapter 3

36If we accept the above-described non-empirical version of DU-legal moralism, then the difference from the harm principle is even more visible. Under such an interpretation, the harms caused by not adopting Durkheimian utilitarianism may be, e.g. moral harms. Under such an interpretation, DU-legal moralism does not protect the individuals from being harmed in welfarist terms, but their moral integrity and human nature. Well-being in such interpretation includes not only physical or psychological but also moral features of a human being. This is a very different approach from a liberally understood harm principle and its contemporary interpretations. Therefore, it would require reformulating a concept of well-being in non-welfarist terms and, consequently, reframing the whole classical discussion on the principles of criminalization.

4.4 Levelling-down challenge

37The levelling-down challenge is a version of the argument raised by philosophers such as Derek Parfit (1997: 210–11) and Joseph Raz (1986: 226–7) against a possible consequence of egalitarianism: that it is good to eliminate inequality by decreasing the well-being of individuals who are better off to the level of those who are worse off. For example, let us imagine a society with many wealthy individuals and a small group of impoverished individuals. This society faces a catastrophe in which the rich lose most of their wealth while the poor stay as poor as they were. Suppose one accepts egalitarianism and the value of equality. In that case, one should believe that society after the catastrophe is better than before, at least in one regard: equality. According to the levelling down objection, this is incompatible with the intuition that there is nothing good in the catastrophe and that the society before it is better.

38Petersen (2017: 73-79) notes that we can also challenge some legal moralism theories, such as George's (1995). He presents an example of two societies, A and B. The well-being of every member of society A is much better than the well-being of any member of society B. However, society A does not criminalize non-harmful but immoral types of conduct X (e.g. homosexual sex), while society B does so. Considering that everything else about these two societies is the same, which of them is better? According to George, society A is worse than B in at least one aspect. Even though well-being is higher, society B lacks a crucial moral component, the legal prohibition of harmless immoralities. Similarly to the levelling down objection against egalitarianism, this conclusion is counterintuitive – how can B be better in any sense? Petersen (2017: 76) notices:

I do not mean to imply that George, all things considered (remember that legal moralists are usually pluralists), would claim that B is better than A, but he must at least claim that B, is in one sense, better than A, because B criminalizes a kind of immorality X that A does not. But how can population B be, in any sense, better than A, if everyone in B is worse off than all the people in A?

39It is difficult to accept that the lack of this one feature of society B would make it worse in any aspect than society A. Thus, according to Petersen, legal moralism seems to be vulnerable to the levelling down challenge.

  • 12 Interestingly, an empirical demonstration that the well-being of members of society A is higher tha (...)

40In DU-legal moralism, the realization of the dualistic human nature is not external to the well-being of an individual but an important (although not the only) factor constituting it. And this is crucial for both versions of DU-legal moralism. Contrary to George’s theory, non-empirical interpretation assumes that moral integrity and human nature are relevant (or even necessary) for well-being. There is no external (to well-being) value such as equality in Partit’s or Raz’s arguments. That is why, by modifying Petersen’s challenge, one should not compare the well-being of society to the eternal (to well-being) moral component – obtaining the equilibrium of moral foundations. According to Durkheimian utilitarianism, the members of society A, whose criminalization policy is based only on only one type of moral foundations (e.g. binding ones) will (putting other factors influencing well-being aside) have lower well-being than society B, whose criminalization policy is based on the equilibrium of all moral foundations, both individualistic and binding. Therefore, DU-legal moralism seems to pass the levelling-down challenge.12

4.5 Weighting challenge

41One can also pose a weighting challenge, which, according to Petersen (2019: 78), considers “how the weighing of values should be executed when determining whether a certain type of conduct C is immoral, and when it is, should be criminalized.” I believe it is not a strong argument against not only DU-legal moralism but also many other normative moral theories based on value pluralism. There are two levels to which we can refer. First, there is a question of whether solving all the conflicts between values is really necessary. Second, there is a question about mechanisms of solving, at least the most fundamental, conflicts of values. When it comes to the former, the answer is negative. Durkheimian utilitarianism assumes that there is at least one equilibrium of Moral Foundations for each society, which should make members of this society flourish and obtain well-being to the greatest extent. There is no doubt there will be conflicts concerning either which Moral Foundation should justify a particular element or between various regulations and policies based on different Moral Foundations. As I mentioned earlier, Durkheimian utilitarianism justifies the system as a whole, and Moral Foundations complement but also sometimes contradict each other. Referring to Krzysztof Saja’s theory of institutional function consequentialism (coming to similar conclusions to Durkheimian utilitarianism), “we should not search for a perfectly coherent set of institutions that can cover all difficult practical cases, but rather for the harmony of institutions that can optimize the fulfilment of all normative practical functions” (Saja 2019: 19). Therefore, we should not pursue perfect consistency but optimization, which requires some inconsistencies or even contradictions. It is a feature of the complexity of morality that policy and lawmakers sometimes make moral decisions inconsistent with each other, which still fit into the system.

  • 13 Which are not super-values, as Moral Foundations are non-instrumental and ultimate.

42Answering the second question, I believe that in most cases, there are instruments for resolving conflicts between Moral Foundations within Durkheimian utilitarianism. However, the pluralistic character of this theory makes it impossible to suggest one correct way to do that. As there are different equilibriums of Moral Foundations, they also have different ways of resolving conflicts between them. Sometimes impact should be put on practical reason (e.g. Alexy’s theory of weighting and balancing), sometimes on using some super scales (see, e.g. Griffin 1986: 90 or Chang 2004)13 and sometimes on political or pragmatic processes. Taking the two arguments mentioned above, I conclude that DU-legal moralism is immune to the weighting challenge.

5 Conclusion

43As I have shown, Durkheimian utilitarianism is a coherent theory which offers a normative vision of how public policies and laws should be shaped. Moreover, Durkheimian utilitarianism, in the form of DU-legal moralism, introduces a fresh proposal to the discussion between moralists and liberal adherents of the harm principle.

44This does not mean, however, that it is a flawless solution. On the contrary, the above considerations show that DU-legal moralism cannot cope with all the challenges to which a good theory of legal moralism should respond. While it is not sensitive to the weighting challenge, the no difference challenge and the levelling down challenge, the challenge from relativism is its major weakness. Also, depending on the interpretation of DU-legal moralism (empirical vs non-empirical), the empirical challenge may be a problem. It would be great if Haidt expanded and refined his theory, answered the problem of moral relativism and provided empirical evidence to support it. Without it, Durkheimian utilitarianism is not still a fully developed theory of legal moralism. However, it would be worthwhile for other researchers to get interested in Durkheimian utilitarianism. But at the same time, it is a fresh and innovative idea in discussing the relations between law and morality.

Acknowledgment.– I would like to thank the anonymous reviewers for their extraordinarily insightful comments, which made this paper much better than in the beginning. This research was funded by the National Science Centre in Poland from the research grant Preludium 10 no.2015/19/N/HS5/01556.

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Notes

1 Good example is a reference to Durkheim’s theory. Haidt’s goal is not to capture the real essence of this French sociologist’s thought but rather to select such elements that aged well and fit Haidt’s theory. That is why we will not find an in-depth analysis of the concepts of anomie or homo duplex in The Righteous Mind. Therefore, the Durkheimian component in Durkheimian utilitarianism is not the French sociologist’s idea but rather Haidt’s interpretation of it. Just for the record, it seems that Hart in his discussion with Devlin did the same thing with Durkheim’s ideas (see Lukes & Prabhat 2012).

2 In this paper, I made a silly slip, labelling Durkheim as German, while, of course, he was French.

3 To be conceptually clear: when I refer in the paper to the Durkheimian version of utilitarianism, I have in mind the idea expressed explicitly by Haidt, mainly in The Righteous Mind; and when I refer to Durkheimian utilitarianism, I have in mind a coherent theory resulting from my charitable reconstruction of Haidt’s ideas, which may differ (and probably differs) from what he had really in mind. Moreover, I use the term ‘moral foundations’ as psychological, evolutionary human traits in contrast to ‘Moral Foundations’ (capitalized) as normative values. According to this terminology, moral foundations theory concerns moral foundations and Durkheimian utilitarianism Moral Foundations.

4 What is important, in the paper I do not present my personal view on whether Durkheimian utilitarianism is a correct theory of morality or criminalization.

5 Similar theory is e.g. Krzysztof Saja’s (Saja 2019, Saja 2020) Institutional Function Consequentialism.

6 The status of liberty/oppression is, according to Haidt, dualistic, depending on its interpretation.

7 Importantly, I do not claim that Haidt himself accepts them, they are the assumptions underlying the possible, charitable interpretation of his ideas.

8 I assume that Haidt is right about the catalogue of moral foundations. However, I am taking into account that due to the future research done by moral psychologists, moral sociologists and evolution researchers it may be modified or even completely changed.

9 Or equilibriums (equlibriumx1, equlibriumx2 etc), if we accept the possibility that there are various possible combinations of Moral Foundations which constitute well-being to the same, greatest extent but in various ways.

10 See Lukes & Prabhat 2012 for criticism of Hart’s interpretations of Durkheim’s thought.

11 Haidt (2012: 440) refers there to research on suicide done by Eckersley & Dear 2002.

12 Interestingly, an empirical demonstration that the well-being of members of society A is higher than that of members of society B would constitute a much more general objection to Durkheimian utilitarianism (similar to empirical challenge). It would imply that either the implementation of Durkheimian utilitarianism into law and public policies do not increase well-being, or that well being is not founded on the realisation of dualistic human nature. In both cases, Durkheimian utilitarianism would need to explain it.

13 Which are not super-values, as Moral Foundations are non-instrumental and ultimate.

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References

Electronic reference

Maciej Juzaszek, “Durkheimian utilitarianism and legal moralism”Revus [Online], 49 | 2023, Online since 30 November 2022, connection on 02 February 2023. URL: http://journals.openedition.org/revus/8652; DOI: https://doi.org/10.4000/revus.8652

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About the author

Maciej Juzaszek

Assistant Professor in Centre for Legal Education and Social Theory, University of Wroclaw (Poland).

Address: Faculty of Law, Administration and Economy / University of Wroclaw / Ul. Uniwersytecka 22-26 / 50-145, Wroclaw / Poland

E-mail: m.juzaszek (at) gmail.com

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