Chapter 6, part 4, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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nother criterion of an essential institution employed by Mitchell is that it is an institution with ramifications (p. 25). It is in this sense that marriage is an essential institution because of its connections with the institutions of parenthood and property. The ramifications of an institution obviously determine to some extent its importance in social life. But it is necessary to consider the different reasons for this since [102/103] not all of them are relevant to the conservative thesis.
Mitchell refers to the difficulty of predicting the effects of social changes (p. 122), and it is true that the greater the ramifications of an institution, the more difficult it is to predict the likely consequences of a change in the institution. The legal protection of an essential institution may then be urged because of the fear that great harm would follow in the wake of the destruction or radical reform of the institution. But whatever the merits of this justification, neither Mitchell's nor Devlin's conservative thesis can rest simply on it, for they would then be falling back on the disintegration thesis, or on the generally accepted principle that the law may protect individuals from being harmed.
For there to be a distinct conservative thesis, society's right to preserve its essential institutions must then depend on other considerations. Perhaps it may be argued that the greater the ramifications of the institution, the greater will be the change in social life effected by the destruction or radical reform of the institution, and hence the greater the disturbance caused to individuals used to a particular social environment. When an essential institution, which is cherished in this way, is associated with a deeply felt and widely shared morality, public deviations from that morality may cause considerable offence to individuals. It may then be urged that it is unfair to deny a person a voice in determining what the social environment which he shares with others should be if he cannot, except with great difficulty, escape from that environment. Where there is a sufficiently strong chorus of voices against a particular sort of conduct, the law may legitimately seek to prohibit such public offensive acts.
If such acts may be prohibited, it is not simply because they are offensive, but because they are offensive nuisances. What converts an act which is merely offensive into one that is an offensive nuisance? One relevant factor is that the offensive conduct is "thrust upon unwilling eyewitnesses" (Hart, Law, pp. 38-48; Hart's position is criticized by David A. Conway). This requirement will not be satisfied simply because an act is committed in a public place in the sense in which a public place is any place that "members of the public" are allowed to go, as opposed to a private house or garden. The act must be "public" in a different sense, namely, that it is performed [103/104] in a place that people actually frequent and it is difficult for them to avoid. A secluded beach, which the public are allowed to use, but which as a matter of fact they do not visit, or can very easily avoid using, is not a public place in the required sense. So, for example, sexual intercourse performed on such a beach, especially at an unearthly hour, is not an offensive nuisance, even though the knowledge of it may strongly offend many in society. On the other hand, if sexual intercourse takes place at peak hour in a busy shopping centre, then it is obviously an offensive nuisance. Similarly, an obscene film, discreetly advertised, and shown in a hall to all adults who wish to see it, is not thrust upon an unwilling audience. But the same film, shown in an open-air theatre, visible to all passers-by, is an offensive nuisance.
It is not easy to spell out all the relevant considerations which identify an act as an offensive nuisance, or which justify legal intervention in such conduct. In his important contribution, Joel Feinberg specifies two principles which must be satisfied before offensive conduct may be legally suppressed ("Immoralities;" see also the comments by Michael D. Bayles and Feinberg's reply in the same volume; Feinberg's paper is also discussed by Donald Van De Veer). The first is that the conduct would offend "almost any person chosen at random, taking the nation as a whole" [Feinberg, "Immoralities," p. 102). But he immediately restricts the scope of this principle so that it does not apply to cases where the offence is caused by the flaunting of abusive or insulting behaviour. In these cases those who are offended may only be a racial or religious minority, and the rest of society may be indifferent, and yet Feinberg believes that legal intervention is justified. Why should this exception be made? Feinberg's reply brings him close to a different principle, that offensive conduct may be prohibited if it gives rise to the likelihood of a breach of the peace. But in the end he veers away from this, and argues that the law cannot permit those who are insulted by offensive remarks to vent their anger in aggressive behaviour, but at the same time it is "burdensome" for them to live with their rage. Taken on its own, Feinberg's comment here allows too much intervention because members of a political party are often angered by the insults directed at the party and its policies, and may well also find it "burdensome" to live with their anger. But Feinberg introduces a second principle that the offensive conduct should not be prohibited [104/105] if those who are offended can avoid being offended without unreasonable effort or inconvenience. This is similar to the criterion we have just discussed.
For the purpose of identifying an act as an offensive nuisance, it seems enough to stick with our earlier criterion that it is an offensive act which is committed in a place frequented by those who are offended, and not easily avoidable by them. This applies to acts which are witnessed. offensive smells and sounds require a slightly different treatment, since the source of the offence may be in private homes, and not necessarily in places frequented by the general public. But sounds and smells travel from one's private place to those of others and to public places. The principle which provides the basis for legal intervention in offensive nuisances is the same in all these cases. It is a principle of fairness. People who live together in a society have to share at least part of their environment with others with whom they may have little else in common. What happens in and around the places where people live, work, shop, eat, entertain or are entertained, is of common concern so long as it is clearly visible, audible, or within smelling distance. To avoid such places involves a sacrifice of a person's daily and perfectly legitimate activities. Fairness demands that everyone should have a say in what the common environment should be, and the problem is to decide how people's conflicting demands are to be settled. But there is no reason why people with totally different outlooks and tastes must share a totally common environment. Thus where some wish to swim in the nude whereas others are offended by the sight of naked bodies, the simple solution is to have separate beaches catering for each group. Non-harmful acts committed out of sight and out of hearing and smelling distance of others are done in non-public space, and there is no reason why others should have a say in what goes on. Since there is no common environment here, the argument from fairness does not apply.
The identification of an act as an offensive nuisance does not automatically justify the legal prohibition of the act. Its being an offensive nuisance in the required sense merely establishes a prima-facie case for legal intervention. But [105/106] whether intervention is actually justified depends on the balancing of different considerations, and the claims of different groups. No doubt in many cases considerable weight has to be given to the preferences of the majority, but these preferences should not be allowed to override basic requirements of fairness and morality. A majority of whites who believe that it is all right for white couples to hold hands or kiss in public, but not for mixed couples to engage in similar acts, make a morally unacceptable distinction. The depth of the majority's offence need not be doubted. But there is no defensible principle of fairness or of morality which will support such discrimination. A law which discriminates in this way is as unjustified as one which prescribes a heavier penalty for a black man who rapes a white woman than for a white man who rapes a black woman.
Mill discusses offensive nuisances in one brief, and not very satisfactory, paragraph in On Liberty:
Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming thus within the category of offences against others, may rightly be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only indirectly connected with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so. [p. 153]
He quite rightly points out that it is publicity of the act which is crucial, and that this class of acts includes both those which, when committed in private, are morally wrong, and those which are not. But he is too quick to place them "within the category of offences against others" in virtue of their being violations of good manners. For an important issue is whether "violations of good manners" can be considered a type of harm to others. According to the concept of harm Mill employs, and which I have discussed in Chapter 4, mere offence to others does not constitute harm to them. Public offensive acts do not harm others any more than private acts, although offence to feelings may be generally greater when acts are done in public than when they are committed in private. Mill gives the impression that these public acts are harmful to others because he is inclined to regard all justifiable [106/107] intervention in conduct as being based on the prevention of harm to others. But what lifts these acts into the category of acts which may be interfered with is not the mere fact that they are offensive to others, but the different fact that they are offensive nuisances in the required sense. So here we have a class of conduct which both does not harm others, and which at the same time falls within the legitimate scope of legal intervention.
Hart, H. L. A. Law, Liberty and Morality. London, 1963.
Feinberg, Joel. "'Harmless Immoralities' and Offensive Nuisances" Issues in Law and Morality, ed. Norman S. Care / Thomas K. Trelogan. Cleveland and London, 1978.
Mitchell, Basil. Law, Morality and Religion in a Secular Society. London, 1967.
Van de Veer, Donald. "Coercive Restraint of Offensive Actions" Philosophy and Public Affairs, 8 (1979).
Last modified 20 April 2001