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phlb11 WEEK 7 (Lec notes 27-02-2013 ).docx

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University of Toronto Scarborough
Mark Clamen

27.02.2013 PHLB11 Mill, Devlin, and Dworkin CRIMINAL LAW - AND LAW IN GNEREAL IS CONERCIVE - harm principle - devlin, application of harm principle - law restricts our behavior and asks us to conform to society is coercive - exercises coercive behavior through violence and the monopoly of such - illegal imprisonment - illegal depravation of freedom the charge is your own freedom as well - restricts action through the very same action (violence) - from whence does the state get this authority? how does the state get his authority? - in America the state and many liberal democratic state get its power from the people and is constrained through compartmentalization of political powers - in Canada it is from the charter of rights and freedoms, which protects and constrains the state (zones of privacy - home, bedroom, etc) - the state should not infringe in these zones - the state protects these liberties by not infringing these liberties - john Stuart mill (1859) on liberty - founding document of our current understanding liberal democratic societies - introduces the harm principle - john Stuart mill - founder of utilitarianism along with Jeremy Bentham - utilitarianism and its source where every single individual having equivalent values was a revolutionary notion - how does society exercise its authority - 2 ways - 1) formally and 2) informally - formal - directly coercive means - i.e. by law and sanctions - informal - peer principles, through public opinion i.e. groups of people pressure others towards homogeneity - family, friends, public views - in class you do not want to act out because of embarrassment and because it has been so engrained in your lives even though the sanctions are not high - their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects no less than against external enemies - to prevent the weaker members of the community from being preyed on by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down p.261 - in the middle ages coercion and loyalty were kept in check by fear - but, political and philosophical theories as well as in persons, success discloses faults an infirmities which failure might have concealed from observation (p.262) - democracy, in practice, is not the rule of each by him/herself but rather the rule of each by all the rest - 262 (the tyranny of the majority) - our rule is not subjected to rule but our rule is subjected to the rule of everybody else and the collective you are subject to laws but you do not rule yourself on it to promote freedom only - can only infringe in the name of liberty and nothing else - Harm principle - the only part of the conduct of any one, for which he is amenable to society, is that which concerns others - p268 - my free action ends when another citizen's action is likewise to be infringed or restrained The harm principle 1) the action must result in. Harm - real harm through action - if it is offensive but not harmful the law has no place - it can't simply offense to our sensibilities or to decency itself - if the conduct is offensive, but not harmful, the law does not have the right to interfere - rules our legal moralism 2)(this harm must be) to others 1) i.e not protecting people from themselves
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