When Can We Do What We Want?
29 Australian Journal of Legal Philosophy, 2004
33 Pages Posted: 15 Aug 2015
Date Written: May 29, 2004
I have sought to catalogue the most salient means by which to claim that legislators are sometimes, and perhaps often, incapable of declaring citizens' conduct immoral, and hence, prima facie regulable. Some of these means rely on the notion that morality itself is 'gappy'; its injunctions leaving room for considerable choice by citizens between options that are themselves of morally neutral status. Others of these means appeal to the claim that even when morality speaks clearly concerning the propriety of a citizens' conduct, there may be reasons related to doubt, disagreement, and rule of law values, why lawmakers cannot declare that conduct immoral. Between the gaps that may characterize morality, and the gaps in moral competence that may characterize lawmakers, we may need far fewer arguments from liberal tolerance than political theorists have thus far supposed when constructing a theory of political liberty. For arguments from tolerance are arguments about why lawmakers should stay their hand even when they have prima facie good reasons to declare citizens' conduct immoral. If lawmakers are sometimes, and perhaps frequently, at a loss to declare citizens' conduct immoral, then citizens may be entitled to a good deal more liberty than legislative tolerance demands. We may very often be entitled to do what we want, precisely because what we want to do falls within the gaps of moral concern or regulatory competence.
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