Contra Mundum: Consenting Adults and Harm

In debates over abortion, homosexual conduct, euthanasia, prostitution, drugs, those who call themselves liberals often mount the same basic argument; a socially or morally permissive stance is necessitated towards such practices because people have a right to choose do what ever they like with their own bodies. As John Stuart Mill put it in his book On Liberty:

“The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” [Emphasis added]

John Stuart Mill

Here Mill articulates the harm principle. He makes a distinction between other-regarding actions, actions that harm other people, and self-regarding actions, those that harm oneself. He argues that society, either by law or by social pressure, cannot justly regulate any action a person performs unless it is other-regarding; that is, it harms people other than the agent him/herself.
As Mill’s position is typically interpreted, harm is understood to be governed by the principle volenti non fit injuria (where there is consent there is no injury); it refers to things done to other people without their consent. Mill states that a self-regarding action is one “which affects only himself, or affects others with their free and voluntary, and undeceived consent”.

Mill intended his principle to be criteria as to what should and should not be made a criminal offence; he did not consider it criteria for determining what is right and wrong. Yet many contemporary liberals appear to use it in this latter way. They contend that as long as the action involves only consenting adults it is morally permissible. It is often asserted in our society, as though it were self-evident, that people have a moral right to do whatever they like with their own bodies.

I think this claim is far from self-evident. Irving Kristol famously proposed this counter-example in a 1971 article in New York Times Magazine:

“[T]he plain fact is that none of us is a complete civil libertarian. We all believe that there is some point at which the public authorities ought to step in to limit the “self-expression” of an individual or group even where this might be seriously intended as a form of artistic expression, and even where the artistic transaction is between consenting adults. A playwright or theatrical director might, in this crazy world of ours, find someone willing to commit suicide on stage, as called for by the script. We would not allow that-any more than we would permit scenes of real physical torture on the stage, even if the victim were a willing masochist. And I know of no one, no matter how free in spirit, who argues that we ought to permit gladiatorial contests in Yankee stadium, similar to those once performed in the Coliseum of Rome-even if only consenting adults were involved.”

The examples Kristol gives are all cases where any person of common sense would condemn the act but where all the victims consent to be harmed.

In his book Harmless Wrong Doing: Moral Limits of the Criminal Law, Liberal Political Philosopher Joel Feinberg considers Kristol’s objection as the most important and potentially-devastating counter-example to the harm principle and he spends considerable energy attempting to circumvent it. He offers four responses. Here I will argue that these responses fail.

First, Feinberg questions whether such cases are really cases of consensual homicide. He suggests that Kristol is too complacent about “the problem of determining genuine ‘willingness’ and voluntary ‘consent’.” He picks up on the fact that Kristol refers to such things happening in this “crazy world”. Feinberg argues, “an agreement is hardly consensual if one of the parties is “crazy”. To exploit a crazy person in the way he describes is not distinguishable from murder”.

Feinberg is correct; people who are crazy, in the sense of being insane, are not competent moral agents. However, it is doubtful that Kristol was speaking of people who are crazy in the literal sense of the word. His reference seems more like a colloquial comment on the kinds of depravity people will engage in if given the freedom to do so. Feinberg appears to find it difficult to accept that a sane person would ever choose to engage in the depraved activities outlined in the counter examples Kristol offered. However, if one believes that human beings are capable of great evil as I do then much of what he says is implausible.

Feinberg also argues that if gladiatorial matches existed today then one would need various mechanisms to ensure consent was actual. He suggests that licensing procedures would render the contests unobjectionable and that both the contestants and the audience could agree to a set of rules that held that the contest must stop once one fighter has clearly gained his or her dominance.

This response is inadequate. It is unclear why contestants would agree to these provisions. Why, for example, could they not agree to a free-for-all or a fight to the death? In the journal Ethics, Jan Arneson observed, “Feinberg has projected a bit of his own nice character onto the world at large” and correctly adds “Feinberg’s liberal principles non-tendentiously applied would hold that we ought to let the free market decide how horrific or bloody the contests should become”.

Arneson adds that even if the contestants and audience did agree to such rules it is hard to see why the practice would then become unobjectionable:

“Feinberg’s response contains the disturbing suggestion that a state-regulated version of Kristol’s gory spectacles would be acceptable to the liberal … so long as some analogue of the Marquis of Queensberry rules is enforced (no bludgeoning your opponent when he is down; no slashing below the belt; no disembowelling your opponent once he surrenders), commercial combat with lethal weapons should in principle be tolerated by a liberal society. Many would consider this a reductio of the liberal position.”

Feinberg’s third attempt to circumvent Kristol’s counter-example is to argue that consensual gladiator matches would inevitably involve harm to non-consenting, third parties. Reflecting upon the audience in a gladiatorial match, Feinberg suggests:

“We cannot hold an image of these wretches in our minds without recoiling, for each of them alone will seem threatening or dangerous, and thousands or millions of them together will be downright terrifying. … When the bloody maiming and slaughtering of a human being is considered so thrilling and enjoyable that thousands will pay dearly to witness it, it would seem to follow that thousands are already so brutalized that there is a clear and present danger that some innocent parties (identities now unknown) will suffer at their hands.”

The claim that such an activity will lead to the deaths of innocent third parties is an empirical one. Feinberg simply asserts that he is correct but offers no evidence to prove this. In the absence of such evidence, the claim is speculative.

A second problem reinforces this. The people killed in gladiatorial matches consent to the fight; the innocent third parties Feinberg mentions do not. In order for enthusiasm for death and killing in a gladiatorial match to spill over into the killing of innocents, fans of such matches must be unable to distinguish between consensual and non-consensual killing so that they are unable to limit their enthusiasm for one without endorsing the other.

This assumption is implausible. For example, permitting people to engage in and enjoy consensual sodomy does not necessarily mean that those people will engage in sodomous rape. Allowing the consensual use of drugs will not mean that all drug users will then coerce others into drug use. Allowing people to watch pornography would not result in the majority forcing others to have sex. Perhaps, even closer to the issue under discussion, allowing people to watch boxing matches does not appear to lead many of them to inevitably engage in assault. Why then should allowing people to watch consensual homicide lead a significant number of them to engage in non-consensual homicide?

The final response Feinberg proposes is to concede that in cases like Kristol’s examples we do see cases of unjust homicide that are consensual but he claims that cases like this are hypothetical, “[t]here seems little likelihood that they will ever occur, at least in the foreseeable future”.

Again Feinberg relies upon an unsubstantiated empirical claim. He asserts, without offering any reason, that gladiator matches are unlikely to occur at all in the foreseeable future. But why think this? Duelling to the death was practiced for centuries. People clearly have been willing to engage in such activities and did so for many years. Moreover, it is also plausible that people would choose to watch such spectacles, even ordinary people. Public executions were popular as late as the nineteenth century which suggests that people are willing, if allowed, to watch real death and violence. The practice of the circuses and gladiator matches in civilised Rome shows the appeal of watching such spectacles. There appears to be no reason for thinking that such an activity is unlikely to occur given the history of the human race.

Interestingly, Feinberg admits this elsewhere in his monograph. In a footnote he notes that the example of gladiatorial contests is no worse, and in some respects better, than some forms of commercial brawling that exist in the U.S. After saying this he cites disapprovingly the examples of “tough guy” contests where people fight bar-room brawls with no holds barred, no rules and often on racial lines. The sources he quotes note that such contests are popular, “the newest rage in spectator entertainment”. It is hard to understand then why Feinberg thinks that such things are unlikely to occur in the future.

It seems then that Feinberg fails to escape the counter-example proposed by Kristol. Liberal morality provides no basis for condemning gladiator matches (and I am not aware of any responses by defenders of liberal or permissive morality that fair any better than Feinberg.) It seems to me that slogans such as “as long as everyone involved is a consenting adult” are not the self-evident truisms they purport to be and are actually quite implausible. It seems far more self-evident that people who engage in and watch consensual gladiator matches are, in fact, depraved rather than that slogans like this are correct. If that makes me non-progressive reactionary or a conservative then I am guilty as charged.

I write a monthly column for Investigate Magazine entitled “Contra Mundum.” This blog post was published in the July 2011 issue and is reproduced here with permission. Contra Mundum is Latin for ‘against the world;’ the phrase is usually attributed to Athanasius who was exiled for defending Christian orthodoxy.

Letters to the editor should be sent to:
editorial@investigatemagazine.DELETE.com

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