UNIT 4 SEMINAR “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” John Stuart Mill, On Liberty

 The proper aims of law and the common good are not the same thing.  The appropriate aims of law are those aspects of the common good that the law should support by means of authoritative rules.  To decide appropriate aims of law, we must consider : the nature of common good the practical and moral limits of authoritative disposition.

 In On Liberty, John Stuart Mill formulated a concept of the aim of law that has been massively influential.  He argued the only justification for exercising power over a member of the community is to prevent harm to others.  To Mill, what counts as harm to others? (Next Slide)

Mill finds that these count as harm to others: (1) acts that directly diminish another’s well being; (2) failure to perform identifiable obligations one may have to others; (3) failure to perform one’s share of what is required for a decent common life in society For Mill, the fact that behavior harms one’s self or is unpopular, vulgar, or immoral does not count as harm to others. Interesting… What do you think?

 Mill held that there are different degrees of pleasure: there were the lower pleasures, such as eating chocolate; then the higher pleasures, such as listening to music; and finally the highest of all pleasures (which he called the über-pleasure): having your toes licked by a small puppy

 Mill's other famous theory was that society should only interfere with an individual's liberty for self-protection.  Mill would sometimes go round pulling faces, swearing at people, and defecating in public; and then, when he was asked to stop, loudly moan “Hey man, stop infringing on my liberty.”  So, would this work in our society?

 Mill insists the harm to others principle is based in utilitarianism,  which holds that the justifying end of all action, whether individual or state, is the overall happiness.  But the overall happiness can be diminished by actions that harm the self, so why does Mill choose “harm to others” as the standard?  Mill’s Reasons….

Overall happiness will be better promoted by letting individuals decide what will promote their own happiness rather than letting lawmakers do it for them because individuals are better informed and more motivated to make the choice  AGREE or NOT?

Experiments in living can discover better ways of living  restricting ways of living that do not harm others deprive both the experimenters and the community at large of the benefit of this knowledge;  Live and let live  “If you’re doin’ no harm than you’re alright with me” Ben Harper

Autonomy, the freedom to choose for oneself has value independent of the choices made. If you want to kill yourself, shouldn’t you have the freedom to choose that course of action? What about using illegal drugs? What about prostitution? What do you think?

 Mill would permit laws intended to prevent harm to self in the case of children, mentally incompetent, and backward societies, as these individuals are not capable of caring for themselves.  Regarding adults in civilized societies, laws to prevent harm to self could be justified in rare cases, e.g., prohibiting someone selling himself into slavery, where the action itself would undermine the individual’s own liberty.  However, once it is admitted that restricting liberty for the good of the individual is permitted in some instances, it opens the door to asking why not in other instances also?

 Gerald Dworkin (born 1937) is a Professor of moral, political and legal philosophy.  He is currently Distinguished Professor of Philosophy at the University of California, Davis. He has also taught at Harvard, MIT, and the University of Illinois, Chicago.  He develops this idea in the notion of limited paternalism. 

 Paternalism is the view that legal restriction is permitted to protect or promote the subject’s good.  Justifiable Restrictions include: (a) actions that would greatly put at risk human goods necessary to exercise autonomy, such as health or a certain degree of education; (b) preventing actions made under duress that are irrevocable, life-altering, or very costly (e.g. suicide, abortion). If proscription is not justified, some legal requirement to wait or deliberate might be.

 The phrase “you can’t legislate morality” is true in some senses and false in others.  Laws that attempt to legislate morality over time can affect behavior, habit, and public views of what is morally blameworthy.

 Examples include laws against discrimination punishing drunk driving.  Think about the definition of a Human that we see in Mississippi. Impacts more than murder statutes Impacts Birth Control and abortion rights Impacts inheritance  Should morality be a reason to prohibit conduct?

 Critical morality consists in those moral norms that correctly prescribes what is to be done from a moral point of view and can be used to accurately criticize choices, beliefs, and attitudes.  Positive morality consists in those social norms that are in fact accepted within a society.  Patrick Devlin argues that critical morality is religious in nature and law should not enforce critical or religious morality, but should enforce positive morality. Positive morality contributes to the bonds that unify society, discourages yielding to temptation, and promotes habits consistent with positive morality.

 No seminar in unit 5 Take the night off!  No discussion board in unit 5 You will be working on a project!  We have an MIDTERM ESSAY  Please review the midterm essay so that we can engage and talk about it in Unit 4 DB! It’s right on point!