Durkheimian utilitarianism and legal moralism

Abstract

The paper concerns the classical problem of legal moralism, i.e. whether enforcement of morality by the state is justified, even if nobody is harmed. In the article, I analyze Durkheimian utilitarianism, Jonathan Haidt’s normative theory of public policies and the law, based on his psychological moral foundations theory. First, I describe Durkheimian utilitarianism and argue how it can be understood as a theory of legal moralism. Then, I subject it to criticism, using five challenges developed by Petersen (2019): the challenge from relativism, the empirical challenge, the no difference challenge, the levelling-down challenge, and the weighing challenge. It leads to the conclusion that Durkheimian utilitarianism, even if it deals with some of the challenges, still suffers from problems that do not allow it to be a fully developed theory of legal moralism.