1. © Michael Lacewing Mill on the role of law Michael Lacewing enquiries@alevelphilosophy.co.uk

2. 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.’

3. ‘ Harm ’ ‘ Harm ’ means harm to our interests. The interests that count here are those that ought to be considered to be rights, those interests ‘ which society ought to defend me in the possession of ’. Which interests should be rights is decided by utility, ‘ but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being ’. These permanent, progressive interests include freedom, the pursuit of truth, and the development of individual character.

4. Individual welfare Mill thought external obstacles to freedom are the main concern of the state. ‘ The only freedom which deserves the name is that of pursuing our own good in our own way. ’ –Freedom and individuality are connected. ‘ The free development of individuality is one of the leading essentials of well-being. ’ –Individuality and welfare are connected. Therefore, freedom is necessary to the welfare of individuals.

5. Social welfare Pursuing your own good in your own way is an ‘ experiment of living ’. To limit these experiments on any grounds other than their causing harm to others is mistaken and will harm society as a whole:

6. Social welfare To impose a way of life on moral grounds is to assume infallibility about moral values. Bad ways of living might still have some insight or truth to them that we would lose if we banned them. Diversity of lifestyles causes people to think about how to live, which leads to better lives. Different people need to live different sorts of lives.

7. Utility, freedom and the role of law The role of law is to secure utility, the ultimate standard. Freedom is necessary for utility, so the role of law is to secure freedom. But must we have as much freedom as the Harm Principle gives us? Not all societies that limited freedom were stagnant. Does freedom ensure utility through the growth of rationality and knowledge of what is truly good? Frederick the Great of Prussia

8. Lord Devlin ’ s argument ‘An established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures.’ ‘There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.’

9. 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. ’

10. 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. ’

11. 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.

12. But will this lead to social tyranny? Tyranny is no longer the rulers dominating the people, because the people rule. But the people who rule, even in a democracy, are not the people who are ruled: there is a majority and minority. The new danger is tyranny of the majority.

13. 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. ’

14. Morality in the law There are some actions, such as public indecency, where the ‘ offence against decency ’ is so great as not only to count as harm, but to be ruled out by customary morality as well; and so they may be prohibited by law. Given his earlier distinction between offence and harm, this is difficult to sustain. Mill is here appealing more to morality than the Harm Principle. Mill thinks of the sense of decency as well- grounded in general utility; but this can be challenged. Is there a good criterion for a correct sense of decency?