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Assessment of Mill's 'Harm Principle'

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ASSESSMENT OF MILL'S "HARM PRINCIPLE" (A) THE HARM PRINCIPLE DOES NOT GO FAR ENOUGH (1) THE LAW SHOULD COVER MORALITY DEVLIN'S ARGUMENT Devlin argues that it is appropriate for the law to enforce morality, as well as preventing harm. He claims that a shared moral code is a necessary condition for the very existence of a community. Shared moral convictions function as "invisible bonds" tying individuals together into an orderly society. Therefore society has as much right to protect its moral code by legal coercion as it does to protect its equally indispensable political institutions. "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." This is not to say that society must never change its moral code. If enough people show they feel strongly about some moral matter by breaking the law and going to prison then they may be able to bring about a change in the moral code of the society. Once they have done so, the new morality must then be protected in law. ...read more.


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) ...read more.


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. ?? ?? ?? ?? ...read more.

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