#17736 - What Should Law Regulate - Jurisprudence

What should law regulate?

NB: ‘GD’ means Great Debates by Sandy Steel and Nicholas McBride

What do we mean by ‘regulate’?

Dworkin: “A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state. … Each conception’s organising centre is the explanation it offers of this justifying force.”

Focusing on Dworkin’s idea shows that when we talk about ‘what should the law regulate’, we are usually talking about ‘what should the law coercively regulate’.

• Feinberg: Coercion = the imposition of criminal punishment

• Hart/Austin: Coercion = threat of undesirable consequences

• Mill: Coercion = whenever you are forcing people to do things

What the law is justified in regulating through non-coercive measures is another question.

Background moral theory and the harm principle

The law enforces morality + [something else].

1. The [something else] is provided for by some background moral theory.

   1. For example, Mill’s background moral theory is founded on the notion of liberty (in terms of freedom from the tyranny of the majority).

2. Many theories employ the harm principle when determining the legitimate sphere of legal control, though the harm principle in itself has no specific content and leads to no policy conclusions.

   1. “[The harm principle] is a normative concept acquiring its specific moral meaning from the moral theory within which it is embedded”.

      1. I.e. the harm principle is the conclusion of a moral argument

There are two parts to any theory which says what the law should regulate:

1. What positive reason is there for the law?

• In other words, a justification for the law’s operation.

• Since law is non-optional, it must be justifiable in principle.

• Many accept the moral ecology argument below.

2. What negative reason is there to limit the law?

   • Mill: Liberty

   • Raz: Autonomy

   • Ripstein/Hart: Right to independence

(A) What positive reason does the state have to enforce morality?

1. Lord Devlin: To prevent social disintegration (refuted by Hart)

   1. It is a part of the nature of society that its members share a common morality sanctions are necessary to ensure conformity to the common morality, or else society will disintegrate (i.e. stop existing).

      1. Devlin therefore argued for the enforcement of positive morality (the majority view of morality), as opposed to critical morality (forming judgments based on sound, reasoned arguments).

   2. Hart: Two objections:

      1. If society is identical with its common morality, then non-conformity to the common morality is simply the common morality changing.

      2. Empirical argument: many people do not agree on morality, but their communities still exist. So long as there is agreement on core morals (i.e. murder and theft are wrong), society will not disintegrate. Disagreement on morality occurs in many functioning societies.

2. Robert George: To preserve society’s moral ecology (built on by Raz)

   1. The state has reason to preserve a society’s moral ecology by taking steps to provide people with a suitable environment to pursue morally valuable activities (and to discourage immoral activities which might destroy that environment).

   2. The premise is irresistible: that it is better that truly morally valuable activities are undertaken and prosper than less morally valuable activities – this is consistent with value pluralism!

   3. TAKE THIS AS THE GENERALLY ACCEPTED ANSWER FOR QUESTION (A)

(B) If one accepts the moral ecology argument, the question then becomes: when is the state, if ever, justified in using coercion to secure such an environment?

Limits on the use of coercion:

1. Hart, Ripstein: The right to independence

   1. People have a right to be free from coercion of others except where it is necessary to prevent them from coercing others. Thus, someone’s freedom cannot be restricted in order to encourage them to act morally.

      1. Hart: The purpose of ‘rights’ is to justify interference with another’s freedom. This justification is only necessary because there is a basic right to be free from interference.

      2. Ripstein: Narrower conception of independence. To interfere with a person’s freedom is not merely to close off one or more of their options, but to ‘dominate’ them: to make the decision for them or to destroy their ability to pursue their own purposes.

   2. If there is a right to independence, how does this justify the enforcement of morality?

      1. Ripstein: The only circumstances in which an interference with another’s independence is justified is to protect others’ independence ensures equal freedom. If the law justified interference on any other basis, it would be deciding what purposes a person pursues.

         1. GD: Right to independence certainly rules out coercion, but less intrusive measures could be used without constituting ‘domination’.

2. Dworkin: The liberal conception of equality and respect

   1. Governments are required to treat their subjects with ‘equal concern and respect’ – a government treats subjects with unequal respect if it favours one citizen’s conception of a morally valuable life over another’s.

      1. Raz: Treating a person in accordance with sound moral principles does not involve a failure to respect that person. ((Raz assumes some moral principles are ‘sound’ this argument seems to rest on the cognitivist/non-cognitivist debate.))

      2. Finnis: The failure to encourage or assist people to lead morally valuable lives can itself entail an inequality of respect. To leave a stranger to succumb to a drug addiction when one would not treat a family member similarly constitutes a lack of ‘equal concern and respect’.

3. Raz: Autonomy

   1. It is legitimate for the state to ensure that people enjoy a range of morally valuable options as to how to live their lives, but coercion is only justified when used to protect someone’s capacity to live their life autonomously: it is not justified when used in order to enforce morality. Using coercion for any purpose other than protecting autonomy (i.e. morality) is self-defeating, as coercion necessarily restricts autonomy by (1) violating the autonomy-condition of independence, and (2) imprisonment precludes a person from almost all autonomous pursuits.

   2. (SEE BELOW FOR RAZ’S AUTONOMY ARGUMENT)

4. Rawls: Justice

   1. The first principle of justice is that “each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties”. Everyone will enjoy an equal measure of freedom to pursue their own conceptions of ‘good’, and the state cannot make it easier to pursue certain lifestyles on the basis that those lifestyles are particularly worthwhile and fulfilling.

What about non-coercive measures?

• Thaler and Sustein’s book Nudge is based on the finding that human beings labour under certain cognitive biases that consistently encourage them to make sub-optimal choices. The state can play on these biases by ‘nudging’ (encouraging) people to participate in desirable behaviour or avoid undesirable behaviour. Nudges are non-coercive means of encouragement, e.g. advertising, PSAs, tax incentives, etc.

  • Some argue that nudges are akin to manipulation and constitute an insult, treating someone as incapable of making good decisions.

    • While nudges are manipulative in that they try to influence people’s choices through non-rational means, but they are not very serious interferences as they only interfere with someone’s ability to make a bad choice. It is also unclear if there is any disrespect or insult in nudging someone to make a good choice; recognising that everyone suffers from cognitive biases and helping to overcome them is just like pointing out that humans cannot fly and need planes made for them. Thus, very unlikely that using non-coercive means to enforce morality would do more harm than good.

Feinberg – Harms as setbacks to interests

Distinguishes between harm as a setback to interests (non-normative sense) and harm as a wrong (normative sense). The harm-principle refers to setbacks of interests that are wrongs, and wrongs that are setbacks to interest. There are very few wrongs that are not to some extent harms – the wrong will usually be an invasion of the interest in liberty, e.g. ‘harmless’ trespasses.

Interests:

• Interests are those things in which a person has a ‘stake’. One’s self-interest consists in the harmonious advancement of all one’s plural interests.

• Interests can be divided into:

  1. Ulterior interests

     • A person’s more ultimate goals and aspirations.

     • Note that the interest may instead be on focal aims; these are goals whose value is not entirely instrumental, though their fulfilment invariably benefits the whole network of wants and interests.

  2. Welfare interests

     • Interests in conditions that are generalised means to a great variety of possible goals; interests in conditions which are necessary for the achievement of these more ultimate aims.

     • E.g. interests in physical health, emotional stability, etc.

     • There are necessary to but grossly insufficient for a good life.

• We can say that whatever promotes a person’s welfare interests is good for a person in any case, regardless of his wants or beliefs. Conversely, wants play a very important role in relation to ulterior interests (goals).

  • Wants by themselves are insufficient to create interests; to be an interest, someone must stand to lose or gain (i.e. have a stake in the interest).

Harms:

• In the context of the harm-principle, a hurt or offence only counts as a harm if it is sufficiently serious so as to violate other interests.

  • The infliction of minor hurts and offenses are not protected by law,...