Unit 4: The aims of law WHAT SHOULD LAW DO AND WHY? IS LAW A SOLUTION FOR ALL PROBLEMS?

What are the proper aims of law? 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 and the practical and moral limits of authoritative disposition.

Law involves exercise of authority.. While oriented towards the common good, the proper aims of law may be limited by the fact that law involves exercise of authority. Why does this matter? Why not pass laws prohibiting all bad behaviors and requiring all good behaviors?

Law’s exercise of authority… ( 4 of 26) (1) law removes discretion by binding subjects to a standard; (2) law places subjects under a threat of sanctions; (3) law may be an ineffective way of promoting some aspects of the common good.

The “harm to others” view… John Stuart Mill 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? (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, count as harm to others. For Mill, the fact that behavior harms one’s self or is unpopular, vulgar, or immoral does NOT count as harm to others.

Mill believes…. (7 of 26) This rule should apply both to speech and conduct. Restrictions on self-regarding conduct cannot be justified without showing a direct harmful effect on others. Do you agree? Can you think of examples in current issues where this argument is being made?

Mill says don’t restrict opinions.. Restrictions on opinions cannot be justified - whether opinions expressed are true, false, or a mixture of the two – on grounds of harm to others. Restricting true opinions makes it harder for people to come to correct beliefs. Restricting false opinions make it harder for the falsity to become publicly clear. Restricting a mixture of the two makes it harder for people to distinguish the true part from the false part.

How can Mill justify this? 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?

Three reasons he gives… (10 of 26) (1) 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; DO YOU AGREE?

Reason 2….. 2) 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; DO YOU AGREE?

Reason 3.. (3) autonomy, the freedom to choose for oneself, has value independent of the choices made. Do you agree? Is this value universal or particular to the US or Western culture?

Why Mill is appealing.. (13 of 26) Mill’s philosophy is appealing because his utilitarianism is more than pleasure and pain, including the idea of autonomy and the promotion of knowledge and creativity; it is optimistic about the possibility of increasing knowledge through argument and experiments in living; and it includes a healthy skepticism about the knowledge and motivations of those who make laws.

Mill agrees that some speech should be restricted… Mill admits speech that would tend to cause direct immediate harm, such as “fighting words” or incitement to riot, could be prohibited. A more difficult problem is speech that merely causes emotional distress, such as “hate speech.” Allowing emotional distress to count as harm to others could justify significant restrictions on freedom of speech. What do you think about “hate speech” laws?

Passing laws to protect people from their own actions? 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.

But this opens the door…(16 of 20) 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? Should it be an aim of law to protect us from ourselves? Can you think of examples in current affairs where this is an issue?

G. Dworkin’s limited paternalism.. Gerald Dworkin 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. Dworkin argues Mill’s exceptions permitting legal restrictions to promote the subject’s own good are based upon the idea that it is reasonable to permit limitations on autonomy for the sake of autonomy. HYPOTHETICAL CONSENT Dworkin justifies this view under a test of “hypothetical consent” – that it is justified if it would rational for one to agree in advance to this restriction. If you were to think about his clearly, rationally, and knowledgeably, this is what you would want to be done to and for you. Are you comfortable with this view?

When should we be paternalistic? For G. Dworkin, two types of paternalistic restrictions are justifiable as protections, “or a kind of “social insurance,” against failures of knowledge or will: (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.

Justifying Dworkin…. Two ways to defend G. Dworkin’s justification of paternalism based upon autonomy is that autonomy increases one’s ability to satisfy one’s desires or that autonomy is a human good in and of itself. A criticism of the first is if satisfaction of desire is the goal; why not make that the aim of law rather than autonomy? A criticism of the second is why should liberty be restricted to promote autonomy but not some other human good?

Is morality a proper aim of law? (20 of 26) 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 and punishing drunk driving. Not all laws are based upon requirements of morality, such as Aquinas’s “determinations” of general norms (e.g., requiring driving on the right side of the road).

Is the cure worse than the illness? Sometimes prohibiting immoral acts might do more harm than good due to unwillingness to comply and consequent disrespect of the law (e.g., Prohibition of Alcohol), invasiveness, or cost of enforcement.

Patrick Devlin explains the “type” of morality law should legislate 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. (a social fact) Patrick Devlin argues that critical morality is religious in nature and law should not enforce critical or religious morality (what a particular religion says is moral) but should enforce positive morality (what society in general believes is moral) Positive morality contributes to the bonds that unify society, discourages yielding to temptation, and promotes habits consistent with positive morality. Devlin says refusal to countenance legislation that reinforces positive morality threatens society itself. Do you agree?

Hart criticizes Devlin….(23 of 26) Hart challenges Devlin’s premises that (1) private immorality threatens society (do you think it does? ) and (2) that a society worth preserving should be defined by a common moral stance. (should society be so defined? What about Mill’s experiments in living and value of autonomy?) (Note: Positive morality constitutes norms accepted, not necessarily the best norms.) Do you like Hart’s view or Devlin’s view better? Why?

Should morals be legislated as paternalism? Another basis for morality as a factor in legislation is based upon paternalism. Morality may be a human good in itself that makes for a better quality life, hence laws promoting morality may be justified as paternalism. Criticisms of this view are that morality may not be a human good in and of itself. If it is argued that legislators lack better knowledge than subjects to decide what is moral (something Mills might argue) a response is (1) it is an issue of will, not knowledge, and legislators can make authoritative rules to combat weaknesses of will; (2) if the legislator is acting as a representative of the people’s will, the competing judgments are individual versus the people collectively.

Morals legislation as good for the community…. Robert George argues that critical morality should be the basis of morals legislation (George says critical morality is not necessarily religious and the morality being enforced should be genuine and not just whatever the majority accepts – is this similar to natural law?) and that the common good of society benefits from more virtue and less vice. Comparing paternalism and George’s view, paternalism justifies morals legislation as a human good for the individual and the neo-Devlinian view of George justifies it for the good of the community.

A third way of justifying morals legislation… (26 of 26) A third view is that a moral community is an ideal that is good in and of itself and pursuit of this ideal should be included in our definition of common good. Do you agree? What should be our ideal of a moral community? Some would argue, echoing Mill, that blocking human living experiments through morals legislation could block actual moral progress, which requires autonomy.