#3522 - Legal Enforcement Of Moral Standards - Jurisprudence

Mill

1. On Liberty

• The sole end for which mankind are warranted, individually or collectively, in interfering w/liberty of any action is self protection. The only purpose for which power can rightfully be exercised over any member of civilised community, against his will, is to prevent harm to others. His own good, moral or physical, isn’t a sufficient warrant & he can’t rightfully be compelled to do/be prevented from doing something b/c it’s better for him/will make him happier/others consider it a better thing to do. These are good reasons for reasoning w/him or persuading, but not compelling him/causing him evil if he chooses not to listen. The only part of conduct for which anyone is amenable to society is that concerning others. In the part which merely concerns him, his independence is as of right absolute. Over himself, individual is sovereign (doesn’t apply to kids, barbarians).

• People should be able to do different things – society isn’t to be made of people doing the same thing

• Human liberty = 3 parts

1. Inward domain of conscience – liberty of thought & feeling, absolute freedom of opinion & sentiment

2. Liberty of tastes & pursuits – framing the plan of life to suit your character, doing as we like, subject to consequences which follow, w/out impediment from fellow creatures, as long as we don’t harm them

3. Liberty within same limits of combination of individuals – freedom to unite, for any purpose, not involving harm to others

No society where these aren’t respected is free, regardless of form of govt. – must be free absolutely & unqualifiedly. The only freedom deserving of its name is that of pursuing our own good in our own way, so long as we don’t deprive others/impede their efforts. Each is the proper guardian of own health: mental, bodily & spiritual.

2. On Limits of Authority

• Individual should seize of that part which is chiefly for his own interest & society of that which is chiefly for its interest

• Although soc isn’t founded on contract, everyone who receives its protection owes it a duty to:

1. observe certain line of conduct by not injuring interests of others; and

2. bear his own share, to be fixed on some equitable principle of the labours & sacrifices incurred for defending soc/its members from injury.

• These two conditions society can enforce at all costs but, aside of them, the offender may only be punished by opinion only, not by law. As soon as any part of individual’s conduct affects prejudicially interests of others, society has jurisdiction over it questions of general welfare then come into consideration. But until then, there’s no room for such questions & individual should have perfect freedom, legal & social, to do the act & stand the consequences.

• Doctrine isn’t one of selfish indifference – it doesn’t pretend that human beings have no business w/each other’s conduct in life & shouldn’t concern themselves w/each other’s well-being. They owe each other duty to help to distinguish the better from the worse & encourage to choose the former, and should always stimulate each other to do good things but neither is warranted in saying to another he won’t do w/his life for his own benefit as he chooses to.

• The interest which anyone can have in other’s well being is trifling when compared to his own & the interest which soc has in him individually, outside of his conduct towards others, is fractional & indirect. So its interference to overrule his judgment in private matters must be grounded on general presumptions which may be wrong or be misapplied to individual cases. Considerations to aid the individual’s judgment & exhortations to strengthen his will may be offered by others but he’s the final judge – all errors which he may commit are far outweighed by evil of allowing others to constrain him to what they deem to be good. This doesn’t mean feelings w/which a person is regarded by others ought not to be affected by his deficiencies – he may be seeking to avoid unfavourable judgment by others, so that here it may be doing him a favour to warn him his act isn’t desirable. But not compel him to act otherwise...

• Distinguish:

1. Feelings we have towards people who displease us

2. Individual who infringes the rules necessary for protection of society & where consequences fall upon it – society, as protector, must retaliate that individual & inflict pain upon him for purposes of sufficiently severe punishment

• Contra argument – no person is entirely isolated being & it’s impossible for him to do anything seriously harmful/permanently hurtful to himself w/out mischief reaching at least those near to him & often those beyond. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depend on him for some portion of their happiness but disqualifies him from rendering services which he owes to fellow human beings. He may also injure others by his example (misleading/corrupting their conduct) & ought to be compelled to control himself for their sake. Even where the consequences can be confined to individual, society ought not to abandon seeking to prevent conduct condemned from beginning of time – drunkenness, gambling, uncleanliness – things which experience has shown not to be useful/suitable for any person’s individuality.

• Mill’s response – fully admits mischief which a person does to himself may seriously affect, through their sympathies & interests, those who are close to him & society in a minor degree when conduct of a person violates a distinct & assignable obligation to any other person, the case is taken out of self regarding class and becomes amenable to moral disapprobation in the proper sense of term; e.g. a man through his extravagance becomes unable to pay of his debts or, having undertaken the moral resp. of having a family, becomes incapable of educating & supporting them – here, he may be duly punished: not for his extravagance but for breach of duty to family & creditors. Whenever there’s definite damage/risk of damage to some other individual or society the case is taken out of the realm of liberty and is placed in that of morality of law. E.g. a man who causes grief to his family by addiction to drugs, deserves a reproach for his unkindness, but isn’t to be punished for that by law. No person ought to be punished simply for being drunk but a soldier should be punished for being drunk on duty. But w/regard to merely contingent or constructive injury which a person causes to society which neither violates his duty to the public nor occasions hurt to any individual but himself the inconvenience is one which society can afford to bear.

• Rationale

1. society already has the whole time of people’s childhood to teach them and make them capable of leading rational lives; if it lets them grow being less than that, it has itself to blame for consequences

• e.g. education

2. when society does intervene, the odds are it interferes wrongly & in the wrong place

• in cases of personal morality, public opinion = at best, some people’s opinion on what’s good or bad for others, though often it’s not even that. In questions of duty to others, however, that opinion is oftener right than wrong.

• e.g. Muslims regard eating of pork as wrong, Puritans in New England endeavour to put down all amusements, especially dancing, public games and music.

Devlin

• Criminal law is based upon moral principle

• Poses the question of what’s the connection b/w crime & sin, and to what extent, if at all, should crim law of England concern itself w/enforcement of morals & punish sin or immorality as such Wolfenden report proposed no act of immorality should be made criminal unless it’s accompanied by some other feature, such as indecency, corruption, exploitation, and proposed to make consensual homosexual act b/w people legal.

• crim. law overlaps w/morality: e.g. treatment of consent in English law has always concerned itself w/moral principles: mainly not permitted to be used as defence b/c an offence against society. There are certain standards of behaviour or moral principles which society requires to be observed & their breach is an offence not merely against person injured but against soc as a whole = the basis of crim law.

• In response to Mill: euthanasia, suicide, abortion, incest b/w brother & sister are acts which can be done in private & w/out offence to others, and don’t involve their exploitation or corruption, yet while some think the law on these requires reform, no one has gone as far as to say they should be taken out of crim law as matters of private morality. They can be brought within crim law by ref to moral principle.

• Source of law’s authority to speak about morality/immorality + settling of principles which it chooses to enforce

• As a matter of history, these principles derive from Christianity but dig deeper the right of society to pass moral judgment = a collective judgment warranting intervention; i.e. public morality. E.g. if soc isn’t prepared to say homosexuality is morally wrong, the law has no basis for punishing a man for immoral earnings as homosexual prostitute. Private morality = private behaviour in matters of morals.

• Society is made up of community of ideas, both political & about how members should behave & govern their lives it has a moral structure made up of moral & political beliefs. E.g. whether man take more than one wife is something soc has to make up its mind on. Institution of marriage is an example of...