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DAVIDW. SHOEMAKER
See TheLos Angeles Times,Aug. 24, 1999. WhatI have to say in this papershould
also, by extension, be appliedto these sorts of laws.
4 Joel Feinberg, Offense to Others (The Moral Limits of the CriminalLaw,
VolumeTwo)(Oxford:OxfordUniversityPress, 1985), p. 3.
5
Ibid., p. x. Feinberg'sinterest-orientedaccountof harmhas repeatedlybeen
challenged, however. See, for example, Dorothy Grover, "PosthumousHarm,"
The Philosophical Quarterlyv. 39, no. 156 (July 1989): 334-353, esp. 347-350;
E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at
WrongfulLife,"Law and Philosophyv. 7 (1988): 3-33, esp. pp. 23-27; Anthony
Ellis, "Offense and the Liberal Conception of the Law,"Philosophy & Public
Affairs v. 13, no. 1 (Winter1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime
and the Conceptof Harm,"AmericanPhilosophical Quarterlyv. 15, no. 1 (Janu-
ary 1978): 27-36. What is common to all of these challenges, however, is the
partialagreementwith Feinbergthat,while setbacksto interestsarenot necessary
conditionsof harm,they are indeed sufficientconditionsof harm.(Ellis contends
that setbacks to desires may be neither necessary nor sufficient for harms, but
mere desiresaredifferentfrominterests,andI thinka carefullyconstruedinterest-
based theoryof harmmight be able to accountfor his counterexamples.See Ellis,
p. 5.) Thatis all I need for purposesof this paper.
6 Feinberg,p. 5.
7 Ibid., 1.
p.
548 DAVIDW. SHOEMAKER
19
Ibid., p. 35.
20 Ibid.
21
Ibid., p. 34.
22
Even though Feinberg explicitly wants to take into account the reasonable-
ness of the offender'sconduct.See, e.g., ibid., p. 26.
"DIRTYWORDS"AND THE OFFENSEPRINCIPLE 553
25
Ibid., p. 36.
26 Ibid.,
pp. 36-37.
27
Ibid., p. 37.
"DIRTYWORDS"AND THE OFFENSEPRINCIPLE 555
38 I am
gratefulto Michael Gorrfor raising these worries.
560 DAVIDW.SHOEMAKER
abominationin the eyes of God (and you are also a firm believer
that God's views define morality), then we would expect you to
be physically repulsed by the viewing of, or even the thought of,
homosexual activity.Otherwise,we might suspect that you do not
truly believe what you profess to believe. Additionally,we would
think it downrightinappropriateor bizarrefor one who professed
to believe all forms of anti-Semitismwere abominableto reactwith
anythingbut horrorborderingon nausea at the graphicdepictions
availableof certainNazi atrocitiesagainstJews.49As AnthonyEllis
putsit, "Whenpeople are stronglycommittedto certainmoralviews
... this shows itself in feelings."50
Consequently,certain types of disgusted reactionsreveal nega-
tive moral or religious attitudes towards the offending actions/
events, regardless of whether or not the offended person is able
to articulatethe internalizednormativejudgmentsbehind the reac-
tion. This inability,however,shouldnot preventus fromrecognizing
that there is a normativeview at work here. But now we can see
the difference between these types of physical reactions and those
toward rotten food or overpoweringlybad odors, for the former
are expressions of moral/religiousviews, while the latter are not.
Persons physically disgusted by the sight or thoughtof interracial
couples, homosexual activity,or Nazi atrocitiesare all reacting, at
least in part,to (whatthey taketo be) the immoralbehaviorof others.
When we ask these people why they are disgustedby such behavior,
they may not be able to give any reasons other than, "Because it's
wrong!", but that reason alone provides the tip-off that they are
expressing a normativejudgment. Alternatively,persons who are
physically disgusted by maggot-riddenfood or foul odors (a) are
not even reactingdirectlyto any behavior,moral or otherwise,and
(b) are not expressingany inarticulatednormativejudgmentsabout
the object of their disgust. When we ask these people why they are
disgusted by certain smells, they will not respondby saying such
things are wrong; at most, they might simply say, "Because they
51
Ellis, p. 8. Strictlyspeaking,of course, this isn't necessarilytrue.Long-time
vegetarians,for example (like our old friend Apu), may very well be offended
by the smells of cooked meat coming from their neighbor'sbarbecue.Similarly,
Muslims may be offendedby the smell of pork.I thinkit fairly obvious, however,
that we can trace such offendedreactionsto certaininternalizednormativejudg-
ments (for instance, there is a behavior that is being implicitly morallyjudged
in both cases, viz., the cooking and eating of, respectively, sentient beings and
"filthy"creatures),and as I shall argue shortly,these reactions can be evaluated
underthe ReasonablenessCondition*.
568 DAVIDW.SHOEMAKER
58
See, e.g., JohnRawls, "TheIdea of an OverlappingConsensus,"in Freeman,
p. 425: "Thisdiversityof [comprehensive]doctrines- the fact of pluralism- is not
"DIRTYWORDS"AND THE OFFENSEPRINCIPLE 573
other liberal democracies), I suspect such cases would be rare to
non-existent.
It will be worthwhilefor me to pause here and briefly summa-
rize both what I have and what I have not shown. I have argued
that the ReasonablenessCondition*should be an essential part of
any set of conditions for the applicationof the Offense Principle
in the justification of coercive legislation. The reasons against its
use are spurious, and the reasons for its use are perfectly com-
patible with (as well as a requirementof) liberal principles.What
this means is thatjustificationsfor legislation againstactions/events
that are taken to be offensive are to be given no weight if they are
unreasonablefrom the standpointof public reason. That is, if the
justifications one gives for banning what one takes to be offen-
sive stem solely from one's own comprehensivemoral/religious
doctrine or if they do not meet the minimal constraintson ways
of reasoning for public discourse, they may safely be ignored for
purposes of public policy. But I have certainly not shown that
justificationsfailing to satisfy these conditions renderthe original
offendedreactionsthemselvesunreasonable.Theremay still be very
good reasonsfrom within the domain of one's own moral/religious
perspective to be offended by any number of things. And there
may also be numerousjustificationsfor legislation stemmingfrom
certain offended reactions that can meet the public demands of
reasonableness. All I have shown is that it is perfectly within
the jurisdiction of the liberal state to make such demands. I turn
now to a case study of how the ReasonablenessCondition*might
play a role regarding so-called offensive language in the public
media.
60
Althoughnewspapersare outside the purviewof the FCC, they also attempt
to maintain"standardsof public decency,"and while they do not have to worry
aboutprovidingany offensive sounds, they sometimes act as if theirreadersneed
to be protectedfrom the very sight of offensive words, insisting on not even men-
tioning (let alone using) certainwords. As a result, we get such coy stories as the
following, reportedin The Los Angeles Times,June 10, 1998. Apparently,during
the broadcastof the TonyAwards,IrishactorTomMurphyused, as the reportput
it, "the 'F-word,'" but he "pronouncedthe word as the Irishdo - with an E as the
second letter,and no G at the end."Apparently,"feckin'" is too offensive a word
even to print.Humorouslyenough, duringthe broadcastitself the word was left
in, simply because the networkcensor "was not familiarwith the pronunciation
and 'decided to give the benefit of the doubt on it because she didn't want to
disruptthe acceptancespeech.'" The reportgoes on to say that it "is believed to
be one of the few times the word, or even a close approximation,has found its
way into a networkbroadcast,except for sportsevents at which microphonesare
placed on the sidelines nearplayers."I suppose we should considerIrish athletes
to constitutedouble threats.
576 DAVIDW.SHOEMAKER
63
HarryFrankfurtprovides a delightful analysis of the term "bullshit,"con-
cluding that it is generally meant to refer to a claim that is "producedwithout
concernfor the truth."See "OnBullshit,"in his TheImportanceof WhatWeCare
About (Cambridge:CambridgeUniversityPress, 1988), p. 129. If he is right,then
the phrase"Yourclaim was madewith no concernwhatsoeverfor the truth"would
provide an inoffensive (albeit far less succinct) substitutionfor the exclamation
"Bullshit!"
64 I am
gratefulto Eric Cave for drawingmy attentionto this objection.
578 DAVIDW. SHOEMAKER
Departmentof Philosophy
Universityof California
Riverside,CA 92521
USA
E-mail: dshoemakr@aol.com