In the last post, we examined the first justification provided by the Court for banning Lady Chatterley’s Lover, i.e., the enforcement of public morals. The Court also made another argument: a ban was justified in order to protect individual morality from deterioration due to exposure to obscene works. This raises an important question about the limits of law: is a supposed moral ‘harm’ caused by an individual to herself sufficient justification for State intervention?
In On Liberty, Mill famously held that it was not:
“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, whether physical or moral, is not a sufficient warrant.”
Joel Feinberg expands upon the Millian principle by adding “offence to others” as a good reason for proscribing a particular act. The harm principle and the offence principle must be distinguished from the two possible justifications underlying the Court’s opinion in Ranjit Udeshi: legal paternalism and legal moralism. Legal paternalism uses law to prevent a stated harm cause by the actor to herself, while legal moralism holds that it is justified to prevent an activity on the sole ground of immorality (private or public), regardless of any harm caused to anyone.
We discussed certain aspects of legal moralism in the previous post, and tentatively concluded that laws requiring justification through a judgment on the relative merits of different ways of life are inconsistent with a Constitution committed to political liberalism. In any event, a perusal of the relevant parts of the opinion makes it clear that the Court was not concerned with bare immorality. It repeatedly voiced the concern that Lady Chatterley’s Lover would “deprave and corrupt by immoral influence” (Paragraphs 19 and 21), and stated:
“The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings.” (Paragraph 26)
The emphasis on protection makes it clear that the Court considered a tangible harm to be at issue, the harm of moral depravity and corruption. We are thus dealing with an instance of legal paternalism. It would be helpful, at this stage, to introduce two further terminological distinctions: soft paternalism limits interference to cases of imperfect knowledge or volition (e.g., a man about to cross a bridge not knowing it will break under him may be restrained), whereas hard paternalism acknowledges no such limitations (we prevent the man from crossing the crumbling bridge even if he knows about its condition, and wishes to commit suicide). A similar way of looking at this is that soft paternalism restricts interference to mistakes of fact, whereas hard paternalism permits interference to (alleged) mistakes of value. And secondly, welfare paternalism looks to improving the interests of persons, whether they consent to such improvement or not, while moral paternalism aims at enhancing their well-being by making them better persons through improving their moral character. In Ranjit Udeshi, it is clear that the Court subscribed to one version of hard moral paternalism.
To reiterate: moral paternalism assumes that by permitting or proscribing certain activities, the State compels a person to live a morally better life. Now, Dworkin makes a preliminary objection to the very idea of moral paternalism. According to his endorsement thesis, “[nothing]… may contribute to the value of a person’s life without his endorsement.” Let us take two examples: that of a smoker, who is well-aware that his life would be objectively better if he was compelled to give up smoking, but insists nonetheless on his right to continue to smoke; and an atheist, who rejects the idea that an enforced faith will improve the moral quality of his life. We are interested in the second kind of case, because here what is in dispute between the state and the individual is the very (moral) evaluation of the activity that is sought to be prescribed.
We may pause for a moment here to examine the issue of hypothetical endorsement, and the difference between questions of fact and questions of value. It is possible to argue that a person who rejects the view that smoking is injurious to health is simply mistaken, and would endorse a limitation upon smoking in his life if either he had full information, or was free from various possible biases. It is possible because the judgment that smoking is injurious arises out of a set of factual inferences that are based upon rules of evidence that – presumably – the person in question accepts in other areas of his life (say, for instance, driving without seatbelts is dangerous). He is therefore being inconsistent without any warrant in his evaluation of evidence. Such an argument is far more difficult to make in cases of value, however, because there – as observed above – it is the very ground rules of evaluation that are in dispute (you believe that homosexuality is a sin on the strength of your faith in the bible; I refuse to acknowledge the bible’s authority). Hard moral paternalism of the Ranjit Udeshi type, therefore, explicitly requires the authority (legislature or court) to label one set of values as good, or correct, or integral to well-being.
The endorsement thesis is controversial. However, does our Constitution subscribe to it – or some variant of it? I suggest that there are two reasons in favour of believing that it does so, at least in some form. First, an effect of the endorsement thesis – as may easily be recognised – is the rejection of externally-determined visions of moral good and well-being. As we saw in the last post, this is precisely one of the central tenets of a Constitution committed to political liberalism: and the ultimate philosophical basis, as Scanlon points out in his theory of free speech – is the idea that the very meaning of autonomy and responsibility lies in individuals determining for themselves what vision of well-being and the good life they wish to subscribe to. Moral paternalism denies them that.
Secondly, issues of this nature are not restricted to issues of free speech. In freedom of conscience cases under Article 25, the Court has held not only that the question of what religion to follow is a matter for individual choice, but also which elements of a particular religion to accept belong to the same domain. It is scarcely disputable that religion (whatever else one might think of it) constitutes a central plank of most persons’ world-view, system of values and well-being; and according to the Court, the question of what constitutes a religion is a question not for religious or secular authorities to determine, but for the individual – even against the viewpoint of the former. In another important area centred upon the determination of value, then, something akin to the endorsement thesis seems to prevail.
If, then, the word “morality” in Article 19(2) refers neither to public morality, nor to individual morality, what does it refer to? One possibility is that it refers to constitutional morality, a term applied by the Delhi High Court in the Naz Foundation case (citing Ambedkar, albeit out of context) in order to distinguish it from popular morality, in the following language:
“Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.” (Paragraph 79)
Another statement of what this might mean may be traced back to Mr. Palkhivala’s submissions in the Privy Purses Case:
“the survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality.”
The distinction between constitutional morality and constitutional legality seems to suggest that constitutional morality consists of the set of (unstated) principles that underlies, characterises and justifies the important provisions of our Constitution. In other words, it contains the elements of the political and moral philosophy that our Constitution is committed to. Such an interpretation of the word “morality” in Article 19(2) would forestall the difficulties that we have seen arising from both “public morality” and “individual morality”, and perhaps provide a principled guide to adjudicating free speech cases in the future.