Transcript Mill on the role of law

Mill on the role of law
Michael Lacewing
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© Michael Lacewing
The Harm (aka Liberty)
Principle
• ‘The only purpose for which power can
be rightfully exercised over any
member of a civilized community,
against his will, is to prevent harm to
others. His own good, either physical
or moral, is not a sufficient warrant.’
‘Harm’
• ‘Harm’ means harm to our interests.
• The interests that count here are those that
ought to be considered to be rights, those
interests ‘which society ought to defend me
in the possession of’.
• Which interests should be rights is decided
by utility, ‘but it must be utility in the
largest sense, grounded on the permanent
interests of a man as a progressive being’.
• These permanent, progressive interests
include freedom, the pursuit of truth, and
the development of individual character.
Individual welfare
• Mill thought external obstacles to freedom
are the main concern of the state.
• ‘The only freedom which deserves the name
is that of pursuing our own good in our own
way.’
– Freedom and individuality are connected.
• ‘The free development of individuality is one
of the leading essentials of well-being.’
– Individuality and welfare are connected.
• Therefore, freedom is necessary to the
welfare of individuals.
Social welfare
• Pursuing your own good in your own
way is an ‘experiment of living’. To
limit these experiments on any grounds
other than their causing harm to others
is mistaken and will harm society as a
whole:
Social welfare
• To impose a way of life on moral grounds is
to assume infallibility about moral values.
• Bad ways of living might still have some
insight or truth to them that we would lose if
we banned them. Diversity of lifestyles
causes people to think about how to live,
which leads to better lives.
• Different people need to live different sorts
of lives.
Utility, freedom and the role
of law
• The role of law is to secure
utility, the ultimate standard.
Freedom is necessary for utility,
so the role of law is to secure
freedom.
• But must we have as much
freedom as the Harm Principle
gives us?
• Not all societies that limited
freedom were stagnant.
• Does freedom ensure utility
through the growth of rationality
and knowledge of what is truly
good?
Frederick the Great
of Prussia
Lord Devlin’s argument
• ‘An established morality is as necessary as good
government to the welfare of society. Societies
disintegrate from within more frequently than
they are broken up by external pressures.’
• ‘There is disintegration when no common
morality is observed and history shows that the
loosening of moral bonds is often the first stage
of disintegration, so that society is justified in
taking the same steps to preserve its moral code
as it does to preserve its government and other
essential institutions.’
Lord Devlin’s argument
• ‘The suppression of vice is as much the law’s
business as the suppression of subversive
activities; it is no more possible to define a
sphere of private morality than it is to
define one of private subversive activity.’
• ‘It is wrong to talk of private morality or of
the law not being concerned with immorality
as such or to try to set rigid bounds to the
part which the law may play in the
suppression of vice. There…can be no
theoretical limits to legislation against
immorality.’
Lord Devlin’s argument
• ‘You may argue that if a man’s sins affect
only himself it cannot be the concern of
society. If he chooses to get drunk every
night in the privacy of his own home, is
anyone except himself the worse for it? But
suppose a quarter or a half of the population
got drunk every night, what sort of society
would it be? You cannot set a theoretical
limit to the number of people who can get
drunk before society is entitled to legislate
against drunkenness.’
Lord Devlin’s argument
outlined
• Morality is essential to the welfare of
society.
• Morality is social, not private.
• It is the business of government to look
after the welfare of society.
• So it is legitimate for government to pass
laws on the basis of preserving moral
values.
But will this lead to social
tyranny?
• Tyranny is no longer the rulers
dominating the people, because the
people rule.
• But the people who rule, even in a
democracy, are not the people who are
ruled: there is a majority and minority.
The new danger is tyranny of the
majority.
Social tyranny
• Tyranny of the majority can lead to illiberal
laws, e.g. against certain religions.
• But it can also be social tyranny, through
socially-endorsed preferences and ways of
living, disapproval and offence:
– ‘It leaves fewer means of escape, penetrating
much more deeply into the details of life, and
enslaving the soul itself.’
Morality in the law
• There are some actions, such as public
indecency, where the ‘offence against decency’
is so great as not only to count as harm, but to
be ruled out by customary morality as well; and
so they may be prohibited by law.
• Given his earlier distinction between offence
and harm, this is difficult to sustain. Mill is here
appealing more to morality than the Harm
Principle.
• Mill thinks of the sense of decency as wellgrounded in general utility; but this can be
challenged. Is there a good criterion for a
correct sense of decency?