© Michael Lacewing Mill on democracy Michael Lacewing

Stages towards democracy: I Before democracy: struggle between rulers and ruled –Liberty as ‘protection against the tyranny of the political rulers’ through limitations on power of government, political rights, balance of power –Power of state to protect against enemies remains, but power to exploit the ruled is limited

Stages towards democracy: II Democracy: the ruled elect the rulers for a fixed period of time –Interests of rulers should be interests of ruled –Liberty = self-government –Power of state is ‘lent’ to government by the people, and used to express the will of the people

Stages towards democracy: III Tyranny is no longer the rulers dominating the people, because the people rule. But democratic rulers = majority, not the ruled. The new danger is tyranny of the majority. So –Liberty = limiting powers of democratic government, e.g. by rights –Power to express will of the majority is restricted

Stages of democracy: IV Recognition that power of majority can be exercised socially through prevailing opinion and feeling’ –Liberty requires limiting power of collective opinion –Power is not just of state, but of society – power of state used to restrict power of society

Social tyranny Tyranny of the majority can lead to illiberal laws, e.g. against certain religions. But it can also be social tyranny, through socially-endorsed preferences and ways of living, disapproval and offence: –‘It leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.’ This is also the effect of ‘custom’.

Limiting social tyranny Self-regulation: society accepts that public opinion should not be oppressive State regulation: punishing abuses of public opinion The difficulty is interfering with freedom of expression.

Challenges Mill accepts that social opinion and feeling are necessary to enforce morality: –‘The acts of an individual may be hurtful to others or wanting in due consideration for their welfare, without going to the length of violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law.’ Morality needs to be distinguished from offence – but can we draw a clear distinction?

The Harm (aka Liberty) Principle ‘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. His own good, either physical or moral, is not a sufficient warrant.’ If morality is not exhausted by ‘harm’, then how can we justifiably use social opinion to regulate moral behaviour?

Morality and offence Mill’s view: –It makes a vast difference both in our feelings and in our conduct towards [someone] whether he displeases us in things in which we think we have a right to control him or in things in which we know that we have not. It is only the ‘right’ morality (based on harm) that we can enforce. Morality that does not distinguish harm from offence is mistaken.

Lord Devlin’s argument ‘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.’ ‘It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. There…can be no theoretical limits to legislation against immorality.’

Lord Devlin’s argument ‘You may argue that if a man’s sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it? But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.’

Lord Devlin’s argument outlined Morality is essential to the welfare of society. Morality is social, not private. It is the business of government to look after the welfare of society. So it is legitimate for government to pass laws on the basis of preserving moral values.