Transcript Document

Unit 4: The aims of law
WHAT SHOULD LAW DO AND WHY?
IS LAW A SOLUTION FOR ALL PROBLEMS?
What are the proper 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.
• To decide appropriate
aims of law, we must
consider the nature of
common good and the
practical and moral
limits of authoritative
disposition.
Law involves exercise of authority..
• While oriented towards
the common good, the
proper aims of law may
be limited by the fact
that law involves
exercise of authority.
• Why does this matter?
• Why not pass laws
prohibiting all bad
behaviors and requiring
all good behaviors?
Law’s exercise of authority… ( 4 of 26)
• (1) law removes discretion by binding subjects
to a standard;
• (2) law places subjects under a threat of
sanctions;
• (3) law may be an ineffective way of
promoting some aspects of the common
good.
The “harm to others” view…
• John Stuart Mill
• In On Liberty, John Stuart Mill formulated a
concept of the aim of law that has been
massively influential. He argued the only
justification for exercising power over a
member of the community is to prevent harm
to others.
To Mill, what counts as harm to
others?
• (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.
• For Mill, the fact
that behavior
harms one’s self
or is unpopular,
vulgar, or
immoral does
NOT count as
harm to others.
Mill believes…. (7 of 26)
• This rule should apply both to speech and
conduct.
• Restrictions on self-regarding conduct cannot be
justified without showing a direct harmful effect
on others.
• Do you agree? Can you think of examples in
current issues where this argument is being
made?
Mill says don’t restrict opinions..
• Restrictions on opinions cannot be justified whether opinions expressed are true, false, or
a mixture of the two – on grounds of harm to
others. 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. Restricting
a mixture of the two makes it harder for
people to distinguish the true part from the
false part.
How can Mill justify this?
• Mill insists the harm to others principle is
based in utilitarianism, which holds that the
justifying end of all action, whether individual
or state, is the overall happiness. But the
overall happiness can be diminished by
actions that harm the self, so why does Mill
choose “harm to others” as the standard?
Three reasons he gives… (10 of 26)
• (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;
• DO YOU AGREE?
Reason 2…..
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;
DO YOU AGREE?
Reason 3..
• (3) autonomy, the freedom to choose for
oneself, has value independent of the choices
made.
• Do you agree?
• Is this value universal or particular to the US
or Western culture?
Why Mill is appealing.. (13 of 26)
• Mill’s philosophy is appealing because his
utilitarianism is more than pleasure and pain,
including the idea of autonomy and the
promotion of knowledge and creativity; it is
optimistic about the possibility of increasing
knowledge through argument and
experiments in living; and it includes a healthy
skepticism about the knowledge and
motivations of those who make laws.
Mill agrees that some speech should
be restricted…
• Mill admits speech that would tend to cause
direct immediate harm, such as “fighting words”
or incitement to riot, could be prohibited.
• A more difficult problem is speech that merely
causes emotional distress, such as “hate speech.”
Allowing emotional distress to count as harm to
others could justify significant restrictions on
freedom of speech.
• What do you think about “hate speech” laws?
Passing laws to protect people from
their own actions?
• 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.
• 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.
But this opens the door…(16 of 20)
• However, once it is admitted that restricting
liberty for the good of the individual is
permitted in some instances, it opens the door
to asking why not in other instances also?
• Should it be an aim of law to protect us from
ourselves? Can you think of examples in
current affairs where this is an issue?
G. Dworkin’s limited paternalism..
• 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.
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.
• HYPOTHETICAL CONSENT
• 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.
• Are you comfortable with this
view?
When should we be paternalistic?
• For G. 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, life-altering, or very costly (e.g. suicide,
abortion). If proscription is not justified, some legal
requirement to wait or deliberate might be.
•
Justifying Dworkin….
• Two ways to defend G.
Dworkin’s justification of
paternalism based upon
autonomy is that
autonomy increases one’s
ability to satisfy one’s
desires or that autonomy
is a human good in and
of itself.
• A criticism of the first is if
satisfaction of desire is
the goal; why not make
that the aim of law rather
than autonomy?
• A criticism of the second
is why should liberty be
restricted to promote
autonomy but not some
other human good?
Is morality a proper aim of law? (20 of
26)
• 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.
• Not all laws are based
upon requirements of
morality, such as
Aquinas’s
“determinations” of
general norms (e.g.,
requiring driving on the
right side of the road).
Is the cure worse than the illness?
• Sometimes prohibiting immoral acts might do
more harm than good due to
• unwillingness to comply and consequent
disrespect of the law (e.g., Prohibition of
Alcohol),
• invasiveness,
• or cost of enforcement.
Patrick Devlin explains the “type” of
morality law should legislate
•
Should morality be a reason to
prohibit conduct?
•
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.
•
•
Patrick Devlin argues that critical
morality is religious in nature and law
should not enforce critical or religious
morality (what a particular religion
says is moral) but should enforce
positive morality (what society in
general believes is moral)
•
Positive morality contributes to the
bonds that unify society, discourages
yielding to temptation, and promotes
habits consistent with positive
morality.
•
Devlin says refusal to countenance
legislation that reinforces positive
morality threatens society itself. Do
you agree?
Positive morality consists in those
social norms that are in fact accepted
within a society. (a social fact)
Hart criticizes Devlin….(23 of 26)
• Hart challenges Devlin’s premises that
• (1) private immorality threatens society (do you
think it does? ) and
• (2) that a society worth preserving should be
defined by a common moral stance. (should
society be so defined? What about Mill’s
experiments in living and value of autonomy?)
(Note: Positive morality constitutes norms
accepted, not necessarily the best norms.)
• Do you like Hart’s view or Devlin’s view better?
Why?
Should morals be legislated as
paternalism?
• 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. Criticisms of
this view are that morality
may not be a human good
in and of itself.
• If it is argued that legislators
lack better knowledge than
subjects to decide what is
moral (something Mills
might argue) a response is
(1) it is an issue of will, not
knowledge, and legislators
can make authoritative
rules to combat weaknesses
of will; (2) if the legislator is
acting as a representative of
the people’s will, the
competing judgments are
individual versus the
people collectively.
Morals legislation as good for the
community….
• Robert George argues that critical morality should be
the basis of morals legislation (George says critical
morality is not necessarily religious and the morality
being enforced should be genuine and not just
whatever the majority accepts – is this similar to
natural law?) and
• that the common good of society benefits from more
virtue and less vice.
• Comparing paternalism and George’s view,
paternalism justifies morals legislation as a human
good for the individual and the neo-Devlinian view of
George justifies it for the good of the community.
A third way of justifying morals
legislation… (26 of 26)
• 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.
• Do you agree? What should be our ideal of a moral
community?
• Some would argue, echoing Mill, that blocking human
living experiments through morals legislation could
block actual moral progress, which requires autonomy.