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Law Morality Part II Notes.docx

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Chad Horne

Part II J.S Mill: The Harm Principle Is a principle of negative liberty Idea is that: “The role of the state is to keep us from harming each other” The Harm Principle Defined:  The actions of individuals should only be limited to prevent harm to other individuals  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  According to the school of thought a person can do whatever he wishes as long as he does not harm other individuals  This belief system holds that, “Over himself, over his own body and mind, the individual is sovereign.” 1. How has the old debate between liberty and authority been transformed in the modern world according to J.S Mill? -> from dictatorship to democracy  Mill observes that the struggle between liberty and authority is an old one but under modern conditions it assumes a new form: o Previously the problem was that of dictatorship; constraining rulers whose power was independent of those they ruled => rulers were restrictive, and their power was superior to that of those they ruled o In a democratic society where the people rule themselves, the problem is one of constraining the power of the majority The idea is: that a person is sovereign (independent of the majority). In dictatorship the problem was that the ruler had total power and control over the majority. In democracy there is still a problem where now the majority controls the ruler and the independent person. This goes against the harm principle and introduces the problem of “the tyranny of the majority” Example: In the 2011 federal election, the majority voted for the Conservative Party, whereas fewer votes were obtained for both the New Democratic Party and the Liberal Party. The fact that a large percent of the population did not vote for the Conservative Party in Parliament is an example of the tyranny of the majority. This is because in Democratic society, the majority decides who rules, and what laws are passed and the minority are dependent on the vote/decisions of the majority. However, according to the harm principle, individuals should be independent so long as they are not harming others or infringing upon the rights of others. Tyranny of the Majority  Does not only concern political or legal power  Concerns also non-legal mechanisms by which standards of “normal” conduct are enforced -> how society comes to establish “normal” or accepted norms, standards, or behavior What is the justification for the harm principle?  Utilitarianism: the view that right actions are those that produce the greatest net balance of utility  The greatest actions are those that produce human happiness or welfare  Consequentialism: is the view that whether an act is morally right depends solely upon the consequences of that act  Difference between Utilitarianism from other forms of Consequentialism is that Utilitarianism singles out human happiness as the only consequence of acts that matter morally. Varieties of Utilitarianism:  Hedonistic: actions are right insofar as they promote pleasure  Preference-Utilitarianism: actions are right insofar as they promote the satisfaction of preferences Mill‟s form of Utilitarianism “in the permanent interests of man as a progressive being” is called  Interest-Utilitarianism: actions are right insofar as they promote the satisfaction of objective human interest o These interests may include food, shelter, medical case, but also knowledge and aesthetic experience, and for Mill: autonomy Example: R. v. Malmo-Levine – does Parliament have the legislative authority to criminalize the simple possession and/or trafficking of marijuana, given that its use/trafficking results in little to no harm to other people? Steps in Charter scrutiny: 1) Is a charter protected interest at stake? 2) Has the interest been violated? 3) Is the violation permissible under s1? S1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” S7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” Positive and Negative Liberty  Mill‟s Harm Principle is a principle of Negative Liberty o It rules out certain grounds for interfering with individual liberty o Negative Liberty: liberty FROM interference o Positive Liberty: liberty TO act in certain valuable ways  The distinction between positive and negative liberty is a difference between “freedom from” and “freedom to”  The fundamental difference between positive and negative liberty concerns the disagreement about the point of liberty  Positive Liberty o “True freedom” consists in acting in specific kinds of valuable ways o Acting from reasons, not being a „slave‟ to one‟s desires o In this sense, freedom is not to be contrasted with being coerced by other but rather with being determined by (external or internal) nature o Positive freedom means the freedom to do what you have good reason to do  Having the freedom to engage in certain specific valuable activities i.e. freedom to belong to a certain religious community or the institution of traditional marriage  The idea is: that these sorts of activities are intrinsically valuable or worthy of pursuit – there are good reasons to do them, and human beings are “Free to do what is intrinsically valuable or worthy of pursuit Because freedom is understood in light of the valuable activities that give them their point or purpose, if follows on this view that other ways of acting are not ways of exercising positive freedom  Negative Liberty o Freedom from interference by others o This is a political rather than moral notion o An individual is free to the extent that they can act unobstructed by others  i.e. the drug addict is just as free as the moral saint (assuming that both are equally free from interference by others A common criticism of negative freedom is that it lacks an account of WHY freedom is valuable. What is the point if freedom in this sense means doing what you please? How can you distinguish between trivial violations of negative liberty and significant ones? Need an account of what makes freedom valuable and worth having. This leads to positive freedom and away from freedom as understood as non-interference. Positive freedom appears to tend to totalitarianism. If “true” freedom means acting in ways that are seen as intrinsically valu
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