Although society has rights, so does the individual. A balance must therefore be struck. No society can do without intolerance, indignation and disgust, but before a society puts a practice beyond the limits of tolerance there must be a deliberate judgement that the practice is so abominable that its mere presence is an offence.
OBJECTIONS TO DEVLIN:
(i) If a moral code is shared anyway by a very large majority of citizens then it is unnecessary to enforce it using the law, particularly as public disapproval of code-breakers will be in itself a strong deterrent.
Possible reply: an additional legal deterrent will reduce temptation, and safeguard society against the undermining effect of deviants.
(ii) Devlin puts too much emphasis on the survival of any society in its existing form. He assumes that such survival should be taken to be desirable unless it can be shown otherwise. The mere fact that something is the case is no argument that it ought to be the case (is/ought gap).
Possible reply: Stability is valuable. If something is “tried and tested” then that is a reason to keep it, unless a strong case can be made against.
(iii) “Tolerance of diversity” could itself be a strong shared moral code of a society. Citizens might feel a shared pride in the tolerance of their society. A society does not need to be intolerant of private morality (so long as it does not harm others).
OTHER ARGUMENTS AS REGARDS THE LAW COVERING MORALS
FOR:
(i) Society, through the law of the land, in effect condones any legal act, so if the law fails to cover a seriously immoral act society is in effect condoning it. (Example: rape within marriage.)
Objection:
(ii) It is desirable to use the law to mould society’s morality. The law can, as it were, set an example, and make people re-examine their attitudes. (Examples: anti-discrimination legislation; affirmative action.)
Objection:
(iii) It is just for sin to be punished. (See notes on Theories of Punishment: Retribution.)
(iv) Some people simply appeal to specific examples, such as: bigamy, incest, bestiality, interfering with a corpse (either necrophilia or other offensive uses to which a corpse might put), desecration of The Flag or other venerated symbols.
AGAINST:
(i) By forcing people to do the morally right thing you are depriving them of the moral credit for doing the right thing voluntarily.
Objection:
(ii) Confronting moral dilemmas and making up one’s mind as to what one should do is an essential part of being human, and of growing in moral discrimination (which is valuable both in itself and in its effect on future behaviour).
(2) THE LAW SHOULD ADDRESS POSITIVE LIBERTY
The harm principle operates with a notion of negative liberty, but positive liberty is equally important. The mere absence of harm does not make everyone free, so the law should take on an enabling role, through a system of social welfare, alleviating poverty and ensuring greater equality.
The existence of welfare might also have implications for self harm: as society has to pay for self-harm, through medical and other expenses, arguably it could be entitled to restrict self-harm legally.
(3) THE LAW SHOULD PREVENT SELF-HARM
According to Mill the license to self harm includes giving consent to be harmed by others. This seems to imply that bare-knuckle boxing, and even duelling, should be legal.
Hart’s suggestion that someone’s own physical good does warrant interference solves this problem, but faces the objection that his suggestion might justify outlawing dangerous sports.
(B) THE HARM PRINCIPLE GOES TOO FAR
All actions of an individual affect others in some way, therefore the harm principle justifies interference by society in every department of human life. Attacks of the acts and omissions distinction, and the distinction between positive and negative liberty, strengthen this argument, as omissions by one individual limit the liberty of others.
Mill’s reply: only direct consequences can count as harm. For example, a policeman drunk on duty gives opportunities to criminals and so counts as harm, whereas an efficient worker who gets drunk at home every night is at worst failing to develop his talents, etc. Another example: OK to publish “Corn dealers starve the poor” in the press, but not to proclaim it to a frenzied crowd gathered outside a corn dealer’s house.
Objection:
(C) THE HARM PRINCIPLE ASSUMES AN INAPPROPRIATE FRAMEWORK
Marxists argue that laws which protect people against harm are only needed in a capitalist system which, being competitive, sets individual against individual. Furthermore in a capitalist system such laws protect the interests of the owners of wealth. For example, “harm” includes theft of property.
Within the general framework of the harm principle, Mill defends free expression. But Marxists would object that under capitalism expression is not free, as it is a product of ideology, which involves self-deceit.
Also, free expression assumes equal access to the media, but this is owned by capitalists.
Mill also assumes that society can progress as a result of the free discussion of ideas, but according to Marx the material conditions of society largely govern its ideas, and ideas do not influence the course of history.
However, Marxists usually accept that some laws, embodying collective authority, would be needed in a communist society, so public harm might still play a role here.
Anarchists (Kropotkin) argue that no laws would be needed in a co-operative anarchy, as most crime would disappear with the abolition of property, and the remainder is not deterred by the law.
