Abstract

One of the questions Jeffrie Murphy puts to us in his paper Legal Moralism and Liberalism is whether a liberal society that endorses the harm principle, i.e.: "that legal coercion is justified only to prevent one person from harming another [nonconsenting] person," can also endorse the retributive principle, i.e.: "that punishment of the guilty is justified insofar as the guilty deserve this response."

Murphy answers that question with a "no." However, his paper does not actually show any inconsistency between the harm principle and retribution. Instead it (merely) gives a series of reasons why it seems that such an inconsistency exists. In these comments I will argue that Murphy cannot show that there is an inconsistency between the harm principle and retribution because, in fact, there is no such inconsistency, and I will establish this using some passages from the writings of Joel Feinberg who, I think, understands this point. However I shall go on to argue that Murphy's paper does raise the worry that one particular motivation for endorsing the harm principle is inconsistent with retribution. As we shall see, however, it is possible to motivate both the harm principle and retribution such that they are not only consistent, but also mutually supportive. Indeed, although Feinberg dislikes what might be called "foundational theorizing" on moral matters, he says enough in his four volume work The Moral Limits of the Criminal Law to allow us to identify his form of liberalism as one that can consistently accommodate both retribution and the harm principle.

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