Intro & The Problem of Unjust Law 1/7/2013 8:14:00 AM
Intro:
How is a legal system possible?
In order to have authority, the philosopher would argue that there would
have to be some pre-determined rule to authorize someone to exercise
legal power, but there is no such rule
To use force, your authority only extends as far as your force does
Might doesn‟t make right, doesn‟t answer the philosopher‟s question
Just because a person has coercive power/force this doesn‟t create a rule
as to why they have authority
They simply then have the power to force a person to do something
Might establishes that another person can compel a person to act a
certain way
Authority involves placing a person under obligation
Both morality and law suggest that one shouldn‟t murder
But it is questionable that law could command things of us that morality
might ask
Kant would argue that there is a norm that makes a legal system
possible, and an obligation desirable
For a legal system to be possible one can appeal to an ultimate authority
i.e. God, or appealing to an ultimate norm via morality, or not looking
at morality at all
January 9: Gustav Radbruch –
Radbruch was a law professor
Wanted to develop ideas to explain how a legal system could be
organized
Felt responsibility for what went on in own society, Germany
Known as liberal and pacifist, concerned w/human rights
Fights in front lines of first world war, felt it was a social right
Wanted a say in what happened in Germany after the war
Joins social democratic party after the war with decimated economy
Communists vs. Nazis at this time, common street fights at this time
Stood between street fighting groups
Social democratic party sat in the middle
Radbruch tried to abolish death penalty Was dismissed from job as university professor for having previously
spoken out against Nazi power
Also banned from libraries b/c Nazis had power of who could access info &
have important jobs
Star professors went abroad to England, US; Radbruch went into internal
exile remaining in Germany but refused to participate in wrong-doings
Wrote much on what was wrong with Nazism before his death & what it
would be like for Germany to have a “right” legal system outside of
Nazism
Positivism – tries to explain what law is without appealing to any idea of
morality
o Radbruch‟s Lawlessness rejects positivism
o Is positivism able to identify what law is? Radbruch would reply not
o Positivist view is that a law is a law and this has no connection to
morality
o Incapable of establishing validity of statutes
o A view saying something is a law if enacted, person who enacted it
has power to enforce it
o Law here is limited by the enforcer‟s power
o Law can have any content whatsoever b/c no moral restriction on
what can be law; only limit is what the sovereign/ruler can enforce
o Dangerous b/c sovereign could make bad laws, as law you are
compelled to obey it
o Radbruch argues if anything could have stopped the Holocaust or
the second world war it‟s lawyers having an opinion against it
o His claim is that there is something fundamental about the nature
of law that positivism cannot account for
o Statutes: laws that a sovereign/ruler enacts using their legal power
o By positivism, there is no innate validity of statutes/laws made here
o Different conceptions of validity – acceptability, norms
o There‟s a kind of validity that positivism can‟t account for
o Its missing an obligation to follow the law
o Law can generate an obligation to obey
o Under positivist law a person may be forced to do something, but
you can‟t explain an actual obligation to do so o Positivism tells you something about the world: if you don‟t do x,
you will be punished
o It doesn‟t tell you why there is an obligation
o How can you derive a legal ought from fact
o What theory of law for what it means to be valid will affect what
there is an obligation to do
o The way you conceive of law affects the way you conceive of legal
validity
January 16: Hart - Separation of Law and Morals –
Radbruch indicated 2 main problems w/positivism [a theory trying to
account of what law is w/o appealing to moral concepts]
Positivist can‟t identify what it means for something to be a valid
law
Nothing can be a valid law for Radbruch if it disagrees
w/suprastatitory law
Second: positivism is a dangerous theory where citizens may end
up doing morally unjust things b/c no validity of laws
Hart will disagree saying that positivism isn‟t dangerous, but the best
theory
H.L.A. Hart –
Permanently on the edge of a nervous breakdown; Jewish descent
Wants to be figure worthy of history, also felt like he doesn‟t belong in
society
Much anti-Semitism in British society
Goes to Oxford, becomes a lawyer, works with British military intelligence
during WWII
Positivism Claims –
Basic positivist claim: theory insists on separating 2 basic questions that
other theories blur: Separation Thesis John Austin
“Is „X‟ a law?”
“Is this particular norm moral?”
Positivist argues that these are two distinct questions
Something can be both a law and can be moral Something could not be a law, and not moral
Something could be a law but not moral
Something could be moral, but not law
Still doesn‟t answer how a positivist identify laws
Hart will argue that law can be identified by its pedigree; whether it was
enacted in accordance w/the appropriate rule for enacting a law in a
given society
What Positivism Doesn‟t Claim –
Doesn‟t deny that morality has influenced law or vice versa
Also doesn‟t deny that moral principles could be introduced into a legal
system
As a general matter something doesn‟t have to be moral to be law
Some legal systems may enact moral requirements as standards for what
can be law
This is only a law for what can be law within a given society
Confusion of Competing Theories –
Positivism argues that all who don‟t endorse separation thesis is confused
Bentham & Austin developed legal positivism
Both argued that b/c something violates morality doesn‟t make it not law
& also just b/c something is morally desirable doesn‟t make it law
Two classes of confusion:
Anarchism: if something is immoral/unjust, it cannot be law.
Quietism: If something is law, it cannot be moral or unjust.
Hart thinks both positions are confused b/c they fail to separate what law
is from what is moral
Neither can recognize that an existing law could be unjust
Hart thinks these are morally deficient
Anarchism is a problem b/c it suggests that if any law is slightly unjust,
we are under no obligation to follow it
This then leads to the view that you don‟t have to obey anything
Taking a quietist thesis you commit to the view that just b/c something is
law, and enacted in accordance w/enacting standards then it is just
Hart wants an theory that explains obligation to obey law, and also allows
criticism of existing laws Wants a middle path between anarchism and quietism
A Progressive Theory –
Endorsing separation thesis that was essential for reformer movement
Reformers wanted precision of what was and was not law
Take a given law: ask is it a law (enacted through appropriate
procedure)? Is this law a moral law? If answer is no, what would be a
moral law? The answer to this and its proposal be enacted as law.
Not just assuming that what is moral is law, but make better laws
Positivism says take morality for whatever you could imagine morality to
be; making no appeal to controversial moral claims
Positivist reformers were able to identify laws, if they were moral, and
invalidate unjust laws and enact moral laws
Objections To Legal Positivism –
1. Affirms the command theory
2. A formalist view of adjudication
3. Leads to extreme injustice
o Radbruch‟s view was positivism was dangerous leading to injustice
b/c it viewed law in abstraction from moral terms so lawyers would
apply law in unjust terms
o Hart replies that positivism doesn‟t lead to injustice, and that
Radbruch is confused
o We have 2 questions when confronted w/Nazi laws that Radbruch
refers to; is it a valid law? Were these laws moral?
o Hart answers yes they were enacted validly but no they were not
moral
o So these laws were not moral, so don‟t follow them; anarchism?
Attack on Radbruch –
Radbruch says not a law b/c not suprastatutory law, Hart replies this is
nonsensical disagreement of vocabulary
Can‟t be case positivism leads to injustice b/c in our society we benefited
w/better gender laws ect
Radbruch argues positivism compatible with any view of morality so you
can couple it with Nazism view of morality
Hart argues that Radbruch is arguing disputable philosophy Monday, January 21: Positivism & Hart Continued –
Hart identifies positivism with the separation theory as the heart of
positivism, every positivism theory agrees with this
To know whether something is law you ask not whether it is moral, but
whether it was enacted rightfully under appropriate social procedure
All laws positive laws; meaning all laws exhaust the concept of law
Anything that is law is law because it was enacted through those
procedures; therefore all laws are positive laws
Laws not valid because they are moral
Non-positivists are opposition holding that though there is positive law,
but that the idea of law is not exhausted by the idea of positive or
enacted law
One of these thinkers is of course Radbruch
Law implies legal obligation if it has been enacted through via acceptable
procedures
Hart tries to rehabilitate positivism in his article
Radbruch trying to end positivism in Germany
Three Objections To Positivism:
1. Affirms command theory
o What is the command theory? A theory developed by Austin, hero
of Hart
o Separation thesis, Analytical Clarity (speaking plainly for all to
understand), and Command Theory are the 3 theses comprising
positivism
o Command Theory - Law is the expression of a wish that another
person do something or abstain from doing something coupled with
a punishment for doing the opposite, and this wish is issued by a
sovereign who is habitually obeyed but does not habitually obey
others, and issued in general terms.
o 3 Reasons for Rejecting the Command Theory:
o 1. Doesn‟t fit modern democratic societies.
o In democratic society everyone is a citizen each giving commands
to others through their representative o All have the power to exercise regular public rights, so there is no
one who is commanded and not a commander
o All are bound by rules and create the rules by which they are bound
o 2. Not all laws are commands imposed by the sovereign.
o Doesn‟t seem there is any un-commanded commander b/c even
they are bound by some sort of constitution
o Other aspects of a legal system seeming much less like commands;
agreements where citizens give each other & themselves new rights
and duties
o Command theory can‟t account for something as basic as the
contract
o 3. Law is not the gunman writ large, and legal order is surely not to
be thus simply identified with compulsion.
o Command theory is missing something; it is missing legal duty
o Law isn‟t simply obligation or forced
o Command theory reduces the idea of law to compulsion, to what
somebody forces you to do; but force does not create obligation
o How can we conceive of legal obligations?
2. It is formalism.
o Formalism - view that law involves mechanical application of rules
to facts.
o Formalism says applying legal rule to facts of a concrete case is
simply like applying a formula to a math equation; Hart disagrees
with this
o This b/c not all rules completely determine how they are to apply to
instances (ex. No vehicles in the park)
o A “core case of a rule” is where there is no dispute to a way in
which a rule applies
o A penumbral case is where the application of a rule is in question
o Problem isn‟t that the rule is vague, but that terms require
definition
o Rules indeterminate because laws by their nature are general
o Laws try to provide general standards of conduct
o Hart argues he isn‟t a formalist b/c he acknowledges that
penumbral cases exist where the rule is unclear & judge is faced
with incomplete law o Hart says that judges are making law by appealing to different
conceptions of social society to decide how the rule applies to a
case at hand
o Hart wants to show that none of these actually undermine
separation thesis
o Whether judge appeals to an aggressive or appealing social policy
in their new law, the judge is still making law
3. Leads to extreme injustice
When Hart confronted by Nazi law he sees simple solution
Just b/c something is a law doesn‟t mean that you have to follow it
Believes he can use separation thesis to explain legal obligation
Non-positivist i.e. Radbruch says that not everything can be a law, but IF
something is a law, one must conform to it
Hart however believes just about anything can be a law, but just b/c it is
law, if you ask it is moral, you are not required to conform to it
Nothing about command theory threatens separation thesis for Hart
The Minimum Morality of a Legal System:
Particular laws need to be valid not moral
Does a legal system as a whole have any necessary relation to morality?
Radbruch and others of course say yes; purpose of law is to serve justice
Hart is going to say there is no necessary relationship between morality
and the validity of a particular law
But there is relation between a legal system as a whole and morality
Due to certain human characteristics/vulnerabilities
B/c human beings are the way they are, there may exist some laws that
overlap with morality
Not to be though anything deep about law, but about humans b/c we
have vulnerable qualities
If we were like crabs, none of these laws would actually be required
Law involves general rules; b/c of this law requires a principle of
procedural justice treating like rules in a like manner
Wednesday, January 23: Hart, The Concept of Law –
The Pre-Legal World of Primary Rules –
Primary rules are concerned with the actions that individuals must do or
must not do Rules indicating the ways in which we should act in respect to one
another
Problem of Uncertainty: no authoritative procedure/person/text for
determining what the primary rules of obligation are
Problem of Static Rules: no authoritative procedure for deliberately
changing the rules
Problem of Inefficiency: no authoritative procedure for determining
whether a rule has been violated or for punishing violation
As long as we are in a primitive world there is no solution to these
problems
Hart explains the solution is to have a legal system, but for this you need
another set of rules
Law as the Union of Primary & Secondary Rules –
o Secondary rules are about primary rules
o Rule of recognition makes it possible to recognize primary rules
and whether they are valid in our legal system
o This is the master rule
o Something can only be a valid rule in the system if it has been
validated through the rule of recognition
o Every legal system has a rule of recognition though it is not the
same rule of recognition in each legal system
o This explains how when America constitutes a law, we in Canada
are not bound by it also
o Its existence is a social fact; a practice where officials recognize
that there is an official way of enacting law & recognizing law
o Once we have this rule in place, we can identify valid rules of law
without applying to divine power, suprastatitory law, ect.
o Rule of change allows an individual or group to deliberately
change the rules in order to respond to current circumstances
o Rule of adjudication specifies who determines whether primary
rules have been violated, the procedure of determination, and how
punishments are to be applied
The Internal Point of View –
Perspective of a member of a group who accepts the rules as the
appropriate standard of conduct The rule once taking internal point of view establishes difference between
appropriate and inappropriate behaviour
Aren‟t we just talking about morality when referring to appropriate
standards of conduct?
Hart replies no, we are looking at norms, this doesn‟t mean the norm is
moral
Norm is just what we take to be a standard pattern of behaviour
Violation of a rule is justification for hostile reaction
Still not saying any rule as moral but that someone has seen it as
appropriate standard of behaviour
What Is A Legal System?
Hart says there are 2 minimum conditions necessary and sufficient for
existence of a legal system
First condition is that people generally obey the rules that are validated
by the rule of recognition
People must obey the rules, but can obey for whatever motivation
Second condition is public officials adopt the internal point of view
towards secondary rules
This means they also adopt the internal point of view for all primary rules
which are validated by the rule of recognition
Law isn‟t a command but a rule validated by a second rule
A legal system isn‟t a condition in which someone barks out commands
that others habitually obey, but a set of primary and secondary rules
which private persons obey and public officials adopt the internal point of
view towards secondary rules establishing them as appropriate
Legal Obligation and Moral Obligation –
Moral obligation: if I have a moral obligation to X, that means I should
do X
Legal obligation: if I have legal obligation to X, this does not mean that
I should do X but that legal officials can insist that I X and punish me if I
fail to X
Hart believes this distinction provides alternatives to the Command
Theory and to Non-positivist theories
Austin‟s Command Theory has no account of legal obligation If it lacks an account of legal obligation it‟s missed something about law
which is that legal systems can place private citizens under obligation
Legal obligation is complicated; only really public officials that adopt the
internal point of view about these rules
No account of how public officials can impose obligation on private
persons
His account of obligations is just how officials perceive rules as obligatory
Hasn‟t explained why private persons should see the rules as obligatory
How is this theory any better than Radbruch‟s non-positivist theories?
The confuse moral and legal obligation which can lead to anarchism and
quietism
Wednesday, January 30: Dworkin – Law’s Ambitions for Itself –
Studied with Hart at oxford & was respected by Hart
Non-positivist philosophy; challenge to Hart‟s positivism
Writing from American context reacting to collection of American thinkers,
scholars, judges ect.
These thinkers committed to legal positivism, but going beyond positivism
Claiming if judges went beyond what is actually positive law under proper
enactment, then judges are actually making law and if judges are using
moral judgment for these decisions then these are not valid law
Positive law on books could be applied neutrally
These people used this philosophy to argue against integrated schools
because there was nothing in text saying schools must be integrated
Dworkin against these forces
His 3 goals:
o Non-positivist account of law
o A theory of adjudication
o A progressive theory of law
Wants to use anti-positivism as a comeback against conservative
positivism seen in the US
Three Mysteries of a Non-Positivist Account:
1. Law works itself pure. When judges appeal to make the law making a new decision i.e.
integrating schools for equality, though it appears to be the judges
making the change it is the law that is making the change
How to show these changes actually emerging from the law itself not
judges
2. There is a higher law within an yet beyond positive law toward which
positive law grows.
The ways in which the law changes within itself are actually
improvements
3. Law has its own ambitions
Difference between 1 and 3 is that any perceived changes within the law
actually aren‟t changes at all
It is law actually discovering its own identity; self-realization
Solution: An Interpretive Model of Adjudication:
Dworkin‟s definition of law: distinguishes positive law (in the books) and
“the full law” i.e. the positive law plus principles of morality that best
justify the positive law
We can‟t conceptualize the law only in terms of positive law
Comes to this perspective by taking the position of a judge on the law
Judge must rely on principles of political morality in order to interpret that
law at all
Positive law can be applied neutrally – Dworkin disagrees saying that
anytime a judge applies a law she is using principles of morality to decide
how the law should be applied
Dworkin says role of the judge is to interpret positive law in terms of the
principles of morality that best justify the law
To try to show the positive law in its best possible light
Two dimensions of interpretation:
o Dimension of Fit –
o Idea that interpretation of a rule as the interpretation must fit the
language of a rule
o Fit what the law means to what the law says applying to the text
directly
o Look at prior decisions that have been made to interpret that law
o Dimension of Justification – o How a judge meant to understand a law in its best possible light
o Choose an interpretation that best justifies that law; makes it make
the most sense making it sensible from a political, philosophical,
moral, ect. Perspective
o This the beginning of Dworkin‟s “Law of Integrity”
o Judge‟s job is to make decisions motivated by principle
o Judge to assume the state speaks one voice – consistency
o Judge should ask the question what should make the rule justifiable
in a fair legal system
o Legal authority is possible b/c positive law is justified by moral
principles
o Law can only be justified by its ability to assume authority over
people in a society
Applying The Model: Dronnenburg vs. Zech:
A real case decided by a judge in Washington circuit
Dronnenburg a gay man in the army caught having sex w/another man in
the barracks & therefore discharged for this act
Dronnenburg argued this was against his constitutional right to privacy
Question of whether this right to privacy extended to cover homosexual
acts
Right to privacy actually not in the text of the constitution
But found to be a right in a number of judicial decisions (i.e. right of
st
married couple to buy contraception, right of woman to abort in 1
trimester, right to marry someone of another race)
None of these covered private acts of homosexuality (yet) in early 1980‟s
Dimension of fit: two possible ways of interpreting the right to privacy
o A narrow decision saying right to privacy only extends to acts
extending to heterosexual marriage
o Second is harm principle articulation understanding prior decisions
as right to individual to engage in acts that do not harm anyone
else part of their political society
Dimension of Justification:
o Dworkin claims the narrow interpretation cannot possibly morally
justify this law it is arbitrary o Right of privacy only applying to heterosexuality doesn‟t make
sense, we wouldn‟t think of things this way
o But harm principle is very coherent way of interpreting the right to
privacy; though acts may be morally upsetting to members of their
society if they do not harm them, acts are covered by right of
privacy
o So Dworkin argues that Dronnenburg‟s homosexual act would be
covered by the right to privacy and therefore permitted
Constitutional rights trump any other laws or commands on book
Has Dworkin solved the three mysteries?
1. Idea of law working itself pure is the idea that the law itself is
changing, something within the law revealing itself
Protecting sex between men as covered by the right to privacy was
already within the law, within the right to privacy by understanding the
right to privacy as right of individuals to engage in acts not harming
others
So in this case the judge was not being activist but merely understanding
the law properly
Main concept here is the law not judges making decisions
2. Implementation of moral principle in the Dronnenburg case made the
law better protecting a gay man‟s rights so the law progressed in a moral
direction
3. That the law is changing, it is just self-actualizing; nothing was added
to the law of privacy, Dronnenburg‟s acts were already included and only
being revealed and actualized in this instance
Main concept here is that there aren‟t actually changes just revelations
But perhaps Dworkin is assuming an already correct & fair regime
What if prior decisions are bad?
Dworkin‟s response to only having law on the books is to say no, we
cannot understand law without recourse principle law is inherently
interpretive
Judges relying on anything past positive law are not “making” law, they
are only seeing law in a moral light
Judges making decisions in law do not make illegitimate law b/c
interpreting them with principles of morality is what gives law its
legitimacy, what allows law to have authority over you Dworkin vs. Hart:
1. What is law?
o Hart says only law we have is positive law enacted in accordance
w/rule of recognition and proper procedures by the books
o Dworkin says if we put selves in shoes of the judge taking
interpretive position you will see the law makes no sense
o In order for judge to make decision they must rely on broader
principle otherwise words on the page make no sense
o Dworkin understands law as combination of positive law and the
principles that best justify positive law he calls this The Full Law
2. What is adjudication?
o Dworkin argues judges just uncover what was law all along, not
making any new laws
o Hart argues the judge is legislating creating new law and ridiculous
to say these rules arose out of law itself
o Are they asking the same question?
Monday, February 4: Review Class –
Dworkin –
American writing in 70‟s/80‟s
Certain approach to constitutional rights/adjudication
Decisions providing protection for rights of minorities in America
Sees supreme courts of US making progressive decisions to protect
minorities
While making these decisions, supreme court criticized by conservative
judges ect.
Critiques that these progressive judges are inventing new rights (like
privacy) inventing commitments not actually in constitution
Strong objection to role of judiciary and courts in role of protecting rights
of minorities
Dworkin wants to argue on behalf of the court and how they‟re acting
legitimately
Needs a theory of law that can legitimize this
Hart‟s view isn‟t particularly helpful for this cause (core vs. penumbral
cases where rules are unclear if they apply) Existing law doesn‟t tell judge what to do when faced with penumbral
cases so the judge must in Hart‟s view create „new‟ law
Dworkin wants a theory of law that can legitimate what these judges are
doing
First step is for judge to formulate a broad interpretation of previous
judicial decisions to find a principle that best fits the existing law
Next the judge must find which principle casts the law in its best light
So judges by following this are only identifying existing law, not creating
new laws; protecting minority rights w/o making new law
Saying people using positivism to defend a retrograde agenda
Wants to point out that positivism isn‟t as morally progressive as it claims
to be
One can agree with positivism without agreeing to one particular view of
morality
When you interpret what law is in a general way, you have to interpret it
in regards to political morality
Three mysteries fit into Dworkin‟s general idea that law already contains
relevant answer to difficult moral questions
Law has its own ambitions, to realize political morality
Dworkin wants to say that the law has its own internal morality vs. Hart
who says to appeal to social policy but it is in the hands of the judge
The outcome is the higher law coming out of law
Hart –
To make sense of legal obligation one needs to make an account of rules
Provides a two-fold account of rules: primary and secondary rules
One has legal obligation when there is primary rule that has been enacted
into law by rule of recognition and legal officials recognize that rule as
being the appropriate/acceptable method of conduct
Legal obligation is not that one should do X but that other people think
you should do X and you will be punished if you don‟t do X
Moral obligation is that you should do X, must do X
2 conditions to having a legal system are that legal officials take internal
point of view on the rules and that citizens generally obey Law and Liberty 1/7/2013 8:14:00 AM
Wednesday, February 13: Devlin –
Wolfenden report concluded criminal law appropriate domain for public
morality but not private
Public morality concerns illegitimate harm between non-consenting
parties
Does society have right to pass moral judgment?
If so, does society have right to enforce moral judgment through law?
Preservation of Culture Thesis
And Preservation of Society Thesis – society entitled to enforce
morality in order to preserve itself
Devlin sees society as community of shared agreements which must
be moral in nature
Kinds of conduct admissible/inadmissible and people must be
unified in these decisions
Mankind requires society; society made up of unified shared ideas;
therefore society has the right to preserve itself and these unified
ideas
Re: cultural preservation thesis not all cultures have rights to
preserve traditions practices and morals b/c we might not think
them as moral, depends on particular culture & its views
Same argument can be made against society thesis that there may
be some societies not worth preserving
Perhaps societies highly racist, Nazis, ect.
Devlin‟s definition would perhaps suggest that Nazis were not a
society b/c of such a clear disagreement about morals i.e. Nazis vs.
Jews being killed; no common shared ideas/morals
Does moral disagreement as such render society unstable?
Suppose its established that society does have right to enforce morality
through government? How do we identify what societal morality?
The standard of the reasonable person/man
Not to be confused with rational
A certain way of thinking we expect to find in the a reasonable civilized
man taken at random, a regular person
Devlin thinks feelings are indication of the consensus of morality
This is the standpoint you're supposed to adopt You adopt this standpoint of the reasonable person, then consider if this
person deems conduct X to be injurious to society?
The power of common sense not the power of reason that is behind the
judgments of society
Feeling Devlin believes indicative to eradicating a behaviour is disgust,
abhorrence
Do you think conduct X is so disgusting that it is injurious to society?
Devlin firmly aligns himself with Hume that passions/feelings define moral
standards
Hume focuses on sympathy, benevolence while Devlin‟s scale rests on
disgust and hate
General consistency of Devlin‟s consistency? We shouldn‟t expect
consistency if the argument is based on emotions
Does society have right to enforce morality in all cases or only some?
Is there a principled way of thinking of how an impermissible
conduct should be prohibited?
Should society try to eradicate it through criminal law?
To know societal conception of morality, look to disgust
Devlin says freedom plays this role – it is that that‟s left over after
society has prohibited all things disgusting in standpoint of
reasonable person and injurious to society
Wolfenden report says that whatever people do in private realm of
morality and is therefore not injurious to the public is none of the
law‟s business; this is freedom by the report
Criminal law cannot enter this realm of private morality by
Wolfenden report
Morals are unchanging but limits of tolerance shift
For Devlin homosexual conduct will always be wrong in English
society, but may not always be prohibited this b/c people‟s attitudes
about what they find disgusting may change over time
Hart is legal positivist; law is matter of conventions, what norms legally
valid is a question of fact
Devlin is a moral positivist; morality is conventional, whether something
is moral in a society is a question of fact
This position can make sense of moral variation, different nations have
different moral basis Is Devlin a quietist? b/c if you believe something immoral you can reject
it
Monday, February 25: Mill –
Born to family of utilitarians by his father and godfather Bentham
Responsible to teach younger siblings what he had learned including
ancient Greek, Newton‟s work, philosophy, ect.
Near teen years Mill had an epic breakdown beginning to rebel and resent
everything part of his upbringing
Being an instrument to instill the greatest good in society for his father
Falls in love with Harriot Taylor a feminist philosopher already married
w/kids
Concerned with the effects laws and personal opinions can have on
individual liberty
Gender equality his major theme while a politician
The Old Threat to Liberty:
Liberty in terms of protection from tyranny of political rulers
The threat is that ruler will use public power to pursue their own interests
rather than those of the public ruled
Solution is to create a democracy making each citizen an individual with
choice and political rights
With periodic elections holding the elected to account
Transition to democracy does not solve problem alone
The New Threat to Liberty:
Liberty in modern democracies means pursuing our own goods in our own
ways as long as we do not impede others from attaining theirs or deprive
them of theirs
Ancient conception of freedom is not based on the individuals
Problem in ancient world was that there is no guarantee that rulers are
using power for the majority‟s good
The threat to liberty in democratic state is power should be exercised by
the majority not the individual but no guarantee that the majority will
respect the freedom of the individuals not among them
Laws are tyrannical when they don‟t respect liberty of individual Mill believes there needs to be protection against tyranny of opinion and
feeling
Not only that laws will be tyrannical if inconsistent w/individual but a
worry that the majority will stamp out individuality creating conformity
Creating greatest happiness for greatest number involves catering to
individuality for Mill
By Devlin‟s view feeling determines laws when someone feels something
is disgusted and freedom is what is left after what's prohibited
For Mill, feeling has to answer to freedom
Feelings cannot be determinate of what is permitted or prohibited in
society
Mill‟s Question:
Wants to focus on philosophic questions
Is there some general principle that articulates what particular conducts
should be prohibited
His Answer: The Harm Principle:
Individual liberty is absolute unless it harms others
Society can only legitimately interfere with conduct that harms others
Distinction between self-regarding activity and other-regarding activity
and law can only interfere with other-regarding activity of a certain kind
Liberty of an individual may be legitimately constrained to prevent that
individual from harming others
Principle applies to other-regarding action
Only applies to adults not children without reason or “backward states of
society”
Theft, murder, and violence can be legitimately prohibited according to
Mill b/c they clearly harm others
Mill never defines „harm‟ but says it is an injury to an interest that society
should protect
Thinks there actually can be mental harms, not constraining harm to
physical conceptions
Can the state prohibit suicide? Seen as a crime for a long time
Wednesday, February 27: Mill – Justification of Harm Principle –
Right to develop individuality, right to unite ourselves
Key of Mill‟s defense is utility
HP: the liberty of an individual may be legitimately constrained to prevent
that individual from harming others.
What about harmful activity that does not wrong? Ex. Economic
competition (falafel businesses)
When Mill talks about harm that can be prohibited it is only from one
person to another
The liberty of an individual may be legitimately constrained to prevent
that individual from harming others in cases in which the constraint is
in the general interest of society.
How do we know what is in the general interest of society? Apply utility
What about dangerous conduct that imposes substantial risk of harm?
The liberty of an individual may be legitimately constrained to prevent
that individual from harming others (or subjecting others to a substantial
risk of harm) in cases in which the constraint is in the general
interest of society.
Problem of what a society can legitimately prohibit
A Curious Passage –
The liberty of an individual may be legitimately constrained to:
-prevent that individual from harming others
-to confer benefits on others or to advance the interests of society
This does not refer to people already harmed
You have a general duty to pursue benefits to others and interests of
society i.e. someone drowning you must pull out even if you didn‟t push
them
The more that law can compel people to act on behalf of others, the
smaller the domain of individuality gets; this is the general worry
Can legitimate law require us to rescue others?
These two principles are not compatible…
One says you can only be constrained when harming others, and the
other says you may be compelled to confer benefits on others Something Still Missing… -
There are harms that don‟t wrong i.e. economic competition
There may be wrongs that don‟t harm i.e. exercising someone‟s horse
The harm principle won‟t catch these because these activities are not
harming another
Using someone‟s things without their permission are conceived as wrong
but don‟t actually cause harm to another
Harm is some set back to interest for Mill
The Problem –
Identifying freedom with independence from harm
An attractive idea that the government cant legitimately impose an idea
of “the good life” on yo
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