Transcript Chapters 4 and 5 Private Law: Torts, Contracts and

Unit 4
The Aims of Law
Aims of Law
 The proper aims of law and the
common good are not the same
thing. The appropriate aims of law
are those aspects of the common
good that the law should support by
means of authoritative rules.
Aims of Law
 To decide appropriate aims of law, we
must consider the nature of common
good and the practical and moral
limits of authoritative disposition.
 While oriented towards the common
good, the proper aims of law may be
limited by the fact that law involves
exercise of authority.
Utilitarian Approach
 If punishment can cause pain to the
wrongdoer and didn’t do anything
else, it was not justified.
 However the utilitarian approach
determined several factors that justify
criminal punishment.
Utilitarian Approach
 General deterrence-deter other members of
society
 Special deterrence-deter the wrongdoer
himself from future crimes
 Incapacitation-Punish to limit the
opportunity to commit future crimes
 Rehabilitation-Change the moral character
of the criminal
John Stuart Mill
 Follower of Bentham
 Some pleasures are by their nature better
or nobler than others
 Intellectual pleasure vs. physical pleasure
We should take a course of action that
maximizes happiness for most people
Harm Principle
 The only legitimate reason for society to
restrict the liberty of one of its members is
to prevent him from directly harming the
interests of others
 Personal conduct is purely a private matter
 For Mill, the fact that behavior harms one’s
self or is unpopular, vulgar, or immoral does
not count as harm to others.
Harm Principle
 To Mill, what counts as harm to
others? He finds that (1) acts that
directly diminish another’s well being;
(2) failure to perform identifiable
obligations one may have to others;
(3) failure to perform one’s share of
what is required for a decent common
life in society, count as harm to
others.
Harm Principle
 This rule should apply both to speech
and conduct. Restrictions on opinions
cannot be justified - whether opinions
expressed are true, false, or a
mixture of the two – on grounds of
harm to others.
Harm Principle
 Restricting true opinions makes it
harder for people to come to correct
beliefs. Restricting false opinions
make it harder for the falsity to
become publicly clear.
Harm Principle
 Restricting a mixture of the two
makes it harder for people to
distinguish the true part from the
false part.
 Restrictions on self-regarding conduct
cannot be justified without showing a
direct harmful effect on others.
Harm Principle
 But the overall happiness can be
diminished by actions that harm the
self, so why does Mill choose “harm to
others” as the standard?
Harm Principle
 (1) Overall happiness will be better promoted by
letting individuals decide what will promote their own
happiness rather than letting lawmakers do it for
them because individuals are better informed and
more motivated to make the choice;
 (2) experiments in living can discover better ways of
living; restricting ways of living that do not harm
others deprive both the experimenters and the
community at large of the benefit of this knowledge;
 (3) autonomy, the freedom to choose for oneself, has
value independent of the choices made.
Harm Principle
 Mill would permit laws intended to
prevent harm to self in the case of
children, mentally incompetent, and
backward societies, as these
individuals are not capable of caring
for themselves.
Harm Principle
 Regarding adults in civilized societies,
laws to prevent harm to self could be
justified in rare cases, e.g.,
prohibiting someone selling himself
into slavery, where the action itself
would undermine the individual’s own
liberty.
Gerald Dworkin
 Gerald Dworkin develops this idea in
the notion of limited paternalism.
 Paternalism is the view that legal
restriction is permitted to protect or
promote the subject’s good.
Gerald Dworkin
 Dworkin argues Mill’s exceptions
permitting legal restrictions to
promote the subject’s own good are
based upon the idea that it is
reasonable to permit limitations on
autonomy for the sake of autonomy.
Gerald Dworkin
 Dworkin justifies this view under a test of
“hypothetical consent” – that it is justified if
it would rational for one to agree in
advance to this restriction.
 If you were to think about his clearly,
rationally, and knowledgeably, this is what
you would want to be done to and for you.
Gerald Dworkin
 For Gerald Dworkin, two types of paternalistic
restrictions are justifiable as protections, “or a kind of
“social insurance,” against failures of knowledge or
will: (a) actions that would greatly put at risk human
goods necessary to exercise autonomy, such as health
or a certain degree of education; (b) preventing
actions made under duress that are irrevocable, lifealtering, or very costly (e.g. suicide, abortion). If
proscription is not justified, some legal requirement to
wait or deliberate might be.
Patrick Devlin
 Every society has its own moral code
and the preservation of that moral
code is essential to the well being of
the society.
Patrick Devlin
 Shared ideas of right and
wrong=society’s moral code
 When the code is violated it is
weakened
Moral Legislation
 The phrase “you can’t legislate morality” is
true in some senses and false in others.
Laws that attempt to legislate morality over
time can affect behavior, habit, and public
views of what is morally blameworthy.
 Examples include laws against
discrimination and punishing drunk driving.
Moral Legislation
 Critical morality consists in those moral
norms that correctly prescribes what is to
be done from a moral point of view and can
be used to accurately criticize choices,
beliefs, and attitudes.
 Positive morality consists in those social
norms that are in fact accepted within a
society.
Moral Legislation
 Patrick Devlin argues that critical morality
is religious in nature and law should not
enforce critical or religious morality, but
should enforce positive morality.
 Positive morality contributes to the bonds
that unify society, discourages yielding to
temptation, and promotes habits consistent
with positive morality.
Moral Legislation
 Devlin says refusal to countenance
legislation that reinforces positive
morality threatens society itself.
 Hart challenges Devlin’s premises
that private immorality threatens
society and or that a society worth
preserving should be defined by a
common moral stance.
Moral Legislation
 Another basis for morality as a factor
in legislation is based upon
paternalism.
 Morality may be a human good in
itself that makes for a better quality
life, hence laws promoting morality
may be justified as paternalism.
Moral Legislation
 Robert George argues that critical
morality should be the basis of morals
legislation and that the common good
of society benefits from more virtue
and less vice.
Moral Legislation
 Thus paternalism justifies morals
legislation as a human good for the
individual and the neo-Devlinian view
of George justifies for the good of the
community.
Moral Legislation
 A third view is that a moral
community is an ideal that is good in
and of itself and pursuit of this ideal
should be included in our definition of
common good.
Moral Legislation
 Some would argue, echoing Mill, that
blocking human living experiments
through morals legislation could block
actual moral progress, which requires
autonomy.