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Law & Morality 271

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Jacob Weinrib

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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