Hart-Devlin Debate - the debate between Lord Devlin and H.L.A. Hart the theoretical basis of decision-making in cases where there is a conflict between individual moral freedom and social control.
Hart-Devlin Debate:
the debate between Lord Devlin and H.L.A. Hart the theoretical basis of decision-making in cases where there is a conflict between individual moral freedom and social control. It is structured in the form of an analysis of the debate between Devlin and Hart concerning the principles for and against the enforcement of morality.
Devlin:
Religion=morality. If you want to enforce Religion, you have to enforce morality. You can learn morality through religion. Bible says that "can't kill b/c god said so"
The law is here no only to protect the individuals but also to protect the whole society against harm. Therefore, if you will kill a person with his/her written permission, you will still go to jail.
Criminal Court: state vs. Joe Black
Civil court: Jane Black vs Joe Black
. does society have the right to judge whats moraly right and wrong
2. Can society use the law to enforce
3. Should society use the law all the time to enforce morality
Society would disintegrate without morality and the implementation of it
Devlins idea: a society has to be held together by a common thought, if such does not exist, then one must exercise force to get the common thought in. Without moral believes law rests in force.
Argues that even the law requires some morality behind it. Some people don't break the law b/c it's the right thing to do. Others do break the law when no one sees (no one can enforce it). Can create chaos-->devlin's thesis.
Can't draw a line between public and private morality.
Morality in people changes:-slavery used to be morally right now its morally wrong
It the matter of balance between the society and its moral
How can one know that we reached the limit of tolerance?-you draw a line when tolerance had been reached-disgust is one of the indicators.
Morality-->always the same
Mores-->changes with time
Reasonable man: regular guy. Good example of how people feel, believe
Rational man: guy who can argue rationally about different things
He doesn't believe that it is morally permissible to enforce what is morally right; rather he believes that it is morally permissible to enforce those views of morality that are shared by most of the people - even if they turn out to be incorrect.
On Devlin's view, it is not possible to set limits to the law's power in advance. "It is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society.... There are no theoretical limits against the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality" (205).
When Should the Law Regulate Morality? Note that the fact that it is permissible to regulate morality doesn't imply that the state always should legislate morality. So Devlin wants to know when should the state exercise its authority to legislate morality? "Nothing should be punished by the law that does not lie beyond the limits of tolerance; it is not nearly enough to say that a majority dislike a practice; there must be a real feeling of reprobation. Those who are dissatisfied with the present law on homosexuality often say that the opponents of reform are swayed simply ...
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When Should the Law Regulate Morality? Note that the fact that it is permissible to regulate morality doesn't imply that the state always should legislate morality. So Devlin wants to know when should the state exercise its authority to legislate morality? "Nothing should be punished by the law that does not lie beyond the limits of tolerance; it is not nearly enough to say that a majority dislike a practice; there must be a real feeling of reprobation. Those who are dissatisfied with the present law on homosexuality often say that the opponents of reform are swayed simply by disgust. If that were so it would be wrong, but I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached. Not everything is to be tolerated. No society can do without intolerance, indignation, and disgust; they are the forces behind the moral law, and indeed it can be argued that if they or something like them are not present, the feelings of society cannot be weighty enough to deprive the individual of freedom of choice."
. Human beings cannot lead a meaningful and satisfying existence without society.
2. It is morally permissible for human beings to do what is necessary to preserve the possibility of a meaningful and satisfying existence.
3. Therefore, it is morally permissible for society to use the law to ensure the existence of society.
4. A society cannot exist without a shared morality (i.e., a shared morality is necessary to the existence of society).
5. Therefore, it is morally permissible for society to use the law to protect its shared morality (i.e., a society may permissibly restrict behavior solely on the ground that it violates the shared morality of a society).
HART:
Harm principle: should be no law for which people gonna be punished
Common law principle: judges were supposed to enforce law and persecute when public morals are beings corrupted judges are custodians of public morality
Common law: judicial presodents from prior cases. Was used before the written law came out
Ex post facto law: one can be arrested for comiting a crime 2 days before it becomes a law
Positive morality: almost like sociology
Critical morality: you are evaluating this morality
Coertion (selfcoertion-fear of getting punished)=evil
Repressing desires: some might think that it is against one personal freedom
Repressiong sexual desires: bad-->causes particualr kind of pain and repression
Hart says if you opress someone sexually it is a bad thing. On can do sexually what he/she wants in the private. It would be better not to repress them.
Law intends to prevent harm. If can't show harm is being done, can't inforce law
Positive morality: public opinion
Moderate thesis: morality is necessary by the society needs to be enforced by law. Otherwise the society will seize to exist
Extreme thesis: needs to be inforced for the own sake
Thretening people does not make them better
-Threat +punishment-->good way to prevent harm(immoral person would still not care and do the same things after the punishment)
-Rather one must use persuasion to make them better
PUNISHMENT IS NOT THE BEST WAY TO TEACH PEOPLE
Moral change comes from critical free discussion. Law will have no effect on morality. If you make something legal, people won't be immidiatelly thinking that's its morally right.
Man in the jury box: He is not expected to reason about anything and his judgment may be largely a matter of feeling. It is the viewpoint of the man in the street.... He might also be called the right-minded man. For my purpose I should like to call him the man in the jury box, for the moral judgment of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous" (206).
MILL:
Utilitarianism:
the greatest good for the greatest number. its an ethical system that claims that you should choose the course of action that yields the greatest good for the greatest number of people
EX: one person on an airplane who is a terrorist he is going to drop a bomb on a city but we could shoot him down ahead of time. A utilitarian would say that we are obligated to shoot him down, even though there are innocent people on the plane. But like a deontologist would not shoot innocent people, even though a greater number of people would be saved. Plus in an ethical system like that, there are a lot less proscriptions. like, less rules about what you can or cant do in your private life
Mill's account utilitarian?
- because mill says you should pursue the greatest good for the greatest number of people
Mill thinks that most people are smart enough to govern themselfes. People need someone to empose morality on them.
It is good to prosecute people for their believes. This will kill wrong belives and dammned lies. Truth will come out and sirvive.
Don't put to death introducers of new ideas though.
Opinions that are supressed that are false:
-those opinions become tabu. Are not allowed to be taught. Not disputing certain things, just take them for granted.
Mill against persecution by the government.
If the speech promotes, limitless, lawless actions, it must be prohibited
"Human being should be free to form opinions and to express their opinions without reserve"
peoples actions can not be as free as peoples opinions.
Opinion: completely free up to a point of illigal actions
Individual has maximum freedom. However-->if there is harm to other people one should not do something .
Individuality is good for a persona and for social progress
You have to throw out habit and custom in order to have progress. Mill rejects people who follow the custom blindly.
-choice (the most important value) is good for its own sake
Mill believed in democracy but was scared that democracy will take individuality from people b/c under democracy everyone is equal. Mass society prevents indiviudualism. Individuals come from freedom.
Will need to work our way up in the society otherwise will end up like China.
State can only interfere when there is serious harm being done to other people.
Mill is against drugs and alcohol.
Alcohol=idelness (people won't be able to do their share of work)
Prostitution should be allowed
Marriage is a contract, an agreement. Devorce, therefore, should be a much easier prosidure than it is.
KANT:
Problems with utilitarialism:
-hard topredict the future. What will action produce over time
-looks like it does not protect persons. One can do wrong to a little amoount of people so that the majority will benefit
rationalism and empericism: Kant wants to put those schools together.
"you can't have knowledge until you have unversal laws"
2 kinds of knowledge: -nature 9determined, physics)
-morality (free, ethics, civilian)
a priori: before, prior to experience
a posteriori: something on the basis of the experience
concepts-->rationalism
percepts-->emperisism
Metaphysics of morals: what we can know a priori about morals
The moral law can not be something we derive from basis of experience If we try to derive it from experience-->we are not free, morality will be based on physics
Kant tries to come up with something to explain that morality is independent.
Morality-->freedom
Physics-->paternalism
Incentive that encourages one to follow the law: -ethical(morally right to obey the law)
-juridicial(if don't obey, go to jail.
Punishment is a bad consequence. What
do I have to do to go unpunished?)
Duties if Right 9recht)-->law
Duties of virtue-->morality
Law comes first , then morality
Concept of right: practical relation of one person to another. Relationship of one person to another by choice. Right is therefore the sum of conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom.
Right-lawfulness
Kant is oncerned about freedom. Freedom for everybody.
Law does create limits of what people can do. Has to be consistent, so that other people won't lose their freedom. As long as you don't interfere with anyone elses freedom.
How do we know what law to make?: do from perspective of perfect reason
The universal Principle of right: any action is right, if it can coexist with everyone elses freedom to act morally in accordance to universal law.
Whoever hinders my actions that coexist with universal law and everyones freedom-->is wrong
Lying is wrong and immoral according to Kan
Coertion is a hinderance to freedom. Can't have lawfullness without the ability to coort. To act rationally is to act freely.
3 Formulas:
) be an honorable human being
2) do not wrong anyone even If to avoid doing so you should have to stop assosiating with others.
3) Enter into a society with them in which each can keep what is his. Give to each what is his
4) Kant believes in state of nature. People enter into civil society in order o preserve themselves and their stuff
There is only one inate right-->FREEDOM(independence from being constrained by another choice)
The purpose of state and the law is to protect freedom
Right: Private Public
(state of nature) (civil society)
-property -state (legislation)
-contracts -international
-status
A right to a thing is a right to the private use of a thing of which I am in possession in common with all others
State of nature-->no laws, no gov't, no police. Property rights inefective without enforcement
In order to secure possesions you need to move to a civil state from state of nature
Property right: right to athing (relationship with other people in respect to other things)
If land does not belong to anyone: someone can have it and evrything else that is on it
mOre power-->more land
Emperical possesion: someone is in control of something
Intellegible possesion: you own a thing without standing there by it with a stick
Kant: something is yours if you can defend it
Can't be any ownership of a person. You are not allowed to own oneself. Can't dispose of oneself as he plaeses. You can not own people.
Contract right: Transfer of something from one person to another as a unity of both persons wills. Relationship to another person. Right to another persons choice.
Marriage: sexual union to procreate. Union of 2 people of different sexes for lifelong possesion of each other sexual attributes Marriaga is a natural sexual union
The only legidimate sexual activity b/n people is during marriage
Sex is immoral: pleasure and you are using another person for plaesure-->immmoral
Only under marriage is sex OK
Sex is evil-->marriage makes it less evil
Prostitution- immoral but not illigal(exept no contract would be enforced)
Unnatural sexual type: sex without procreation (same gender sex etc). it is wrong.
For murdere-->deathpenalty (death for death)
For rape-->can not mirrow the crime. Castration is the penalty
All of the unnatural crimes are wrong sinc ethey prevent reproduction
Relationship: Parent and child (mutual respect, obligation from a parent to a child is to fullfill the obligation of the not asking the kid if he wanted to be born)
Morally--> parents have to make the kids life as good as possible. They did not ask his permition to be born. Owe it to the child
Entering a civil society is a duty. You have to leave the satte of nature
One can take over a country if and only if this country does not have any established laws or gov't
Public right: the sum of the laws which need to be promulgated generally in order to bring about a rightfull condition
Until you have a world gov't you will not be secure. You'll need global constitution to protect ervyone
Int'l gov't is not possible until evry country has the right kind of constitution.
Democracys don't fight wars with each other. If evry country is a democracy-->no more wars
Civil State: achieved through unity of wills contains 3 powers within it.
Legislative branch-->people
Executive branch-->king
Well being of the state is not the happiness of the people. Good state is the one that has the rightfull condition
People don't have a right to rebellion. They can not complain. Gov't has to change itself.
Escape clause-->the gov't was too bad that it was like leaving in the state of nature-one HAS to get to the real civil society.
Rebellion would cause lying by people-lying is wrong
Freedom of expression: great thing which might give a little push o the change of laws
Gov't can't own land. Gov't can not own anything. Owning of a land would increse your personal interests. Gov't has the right ot taxation and representaion
Retrebution is the only and the best way to punish people (the only moral way as well). Has an end to himself. Gives the person what he deserves.
Is pro death penalty.
