The Concept of Public Morality

American Journal of Jurisprudence 45:1 (2000). Reprinted in Craig Steven Titus (ed.), The Person and the Polis (Institute for the Psychological Sciences Press, 2006).

Public morality, like public health and safety, is a concern that goes beyond considerations of law and public policy. Public morals are affected, for good or ill, by the activities of private (in the sense of “nongovernmental”) parties, and such parties have obligations in respect to it. The acts of private parties-indeed, sometimes even the apparently private acts of private parties-can and do have public consequences. And choices to do things that one knows will bring about these consequences, whether directly or indirectly (in any of the relevant senses of “directly” and “indirectly”) are governed by moral norms, including, above all, norms of justice. Such norms will often constitute conclusive reasons for private parties to refrain from actions that produce harmful public consequences.

Let us for just a moment lay aside the issue of public morality and focus instead on matters of public health and safety. Even apart from laws prohibiting the creation of fire hazards, for example, individuals have an obligation to avoid placing persons ana property in jeopardy of fire. Similarly, even apart from legal liability in tort for unreasonably subjecting people to toxic pollutants, companies are under an obligation in justice to avoid freely spewing forth, say, carcinogenic smoke from their factories. Concerns for public health and safety are, to be sure, justificatory grounds of criminal and civil laws; but they also ground moral obligations that obtain even apart from laws or in their absence.

What is true of public health and safety is equally true of public morals. Take, as an example, the problem of pornography. Material designed to appeal to the prurient interest in sex by arousing carnal desire unintegrated with the procreative and unitive goods of marriage, where it flourishes, damages a community’s moral ecology in ways analogous to those in which carcinogenic smoke spewing from a factory’.s stacks damages the community’s physical ecology.

The central harm of pornography is not, as some people-especially some American judges-seem to suppose, that it shocks and offends people, any more than the central harm of carcinogenic smoke is that it smells bad. Rather, the central harm of pornography is moral harm-harm to character, and thus to the human goods and institutions, such as the good and institution of¬†marriage, which are preserved and advanced by the disposition to act uprightly, and damaged and defiled by a contrary disposition, in respect to them. So the analogy is with the harmful impact of carcinogenic pollutants on the physical health of people subjected to them. And just as companies have an obligation in justice quite apart from considerations of legal liability to avoid damaging people’s health by polluting the air, so, too, people have an obligation in justice even apart from legal prohibition to avoid harming people’s character (and the goods and institutions that depend on widespread good character) by producing and disseminating pornographic materials.

University of Notre Dame Law School [pdf]