Legal Moralism or the Harm Principle? The Limits of Criminalization from the Perspectives of Feinberg and Mill

Abstract

This article interrogates the proper limits of criminalization by staging a three-way dialogue between John Stuart Mill’s Harm Principle, Lord Devlin’s Legal Moralism, and Joel Feinberg’s liberal “multi-principle” framework that supplements harm with the Offense Principle. Using normative legal research, the study focuses on the expanded legality clause in Article 1(2) of Indonesia’s Law No. 1 of 2023 to illustrate how vague normative drafting enables moralistic overreach. Conceptually, Mill secures individual autonomy by permitting coercion only to avert harm to others; Devlin justifies penal law as guardian of shared morality; Feinberg preserves Mill’s core while narrowly authorizing regulation of grave, unavoidable public offense. Applied to Indonesian criminal law, especially the Pornography Law (Law No. 44/2008) and selected morality offenses in the 2023 Criminal Code, the analysis finds a persistent tilt toward legal moralism often masked in the rhetoric of “social harm,” risking overcriminalization, majoritarian tyranny, and erosion of civil liberty. The article argues that Feinberg’s calibrated model offers the most defensible liberal path for a plural society, reining in paternalism and moralism while allowing targeted regulation of severe public offense, provided courts deploy robust proportionality, evidentiary rigor, and clear statutory definitions. The policy upshot is twofold: tighten legality through precise offense definitions and rights-based proportionality tests, and adopt a presumption against criminalization for self-regarding conduct absent demonstrable third-party harm or grave, inescapable public offense.