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HUMA 1825 Lecture Notes - Harm Principle, Citizen King, Group Sex

Course Code
HUMA 1825
Neil Braganza

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HUMA 1825 Note 18
Last Writing Assignment
- This will cover both the Butler and Labaye
o It will have some question on Butler as re-interpreted by Labaye
- It will also cover the last segment of civil disobedience to ask the question
of under what condition do we have the right or obligation to disobey an
unjust law
o We’re first going to read John Rawls who wrote the theory of justice,
and MLKJr.’s Letter from urban jail
o Then we’re watching Citizen King that picks up the story from
Birmingham until he was killed
o We will finish the course by reading an updated version of Antigone
from 1934, and then we’re going to watch a film that deals with that
historical background
- There will be no lecture on Monday April 8th
Highlights of Mill, Devlin, Dworkin and Butler
- What we see here is an arc, moving toward a theory of the arc
- We began this segment with Mill’s on liberty
o He makes a central point in his essay involving his harm principle
that principle follows directly from Mill’s views on individual liberty,
autonomy, and responsibility
o Recall what Mill says:
The individual is sovereign in acts only that concern the
Neither the state through its coercive lawmaking powers nor
society through its social pressures to force us to conform can
or should dictate how individuals should live their lives in
terms of self-regarding acts: acts that concern only themselves
Of course, is there any act that does not have an impact
on someone else.
We are each the proper guardian of our own health, whether
bodily, or mental, or spiritual.
We should have perfect freedom; legal and social, to do the
action and stand the consequences.
o Individual liberty is always coupled with individual responsibility and
o Where other regarding acts are concerned, we’re also responsible and
If we cause harm to others, the law and society will hold us to
account law will punish us and society will condemn us by
morally and socially disapprove.
o Harm for Mill is actual/physical harm. Harm that has a
demonstrable way of being proven. There has to be a causal
relationship between the acts of others and harm.

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Examples: second hand smoking, texting while driving, etc.
Cause and effect we have laws regarding those activities
o Before the law can intervene in our lives there has to be evidence of
this causal relationship the act and the harm that the act causes to
o Moral harm act that morally corrupts the individual in somewhat
Mill doesn’t consider morally harmful as necessarily harmful
Moral harm might be the tyranny of the majority where the
majority tries to impose its opinion on how others should
behave. This tyranny makes laws for the large part and makes
social pressure on us to conform on how others think we
should behave.
o The likings and disliking of society are thus the main thing which is
practically determined the rules laid down for general observation
under the penalties of law and opinion Mill thinks this is a bad thing.
- Devlin has an opposite approach Mill tries to keep the personal and social
domains of an individual’s life distinct and separate.
o Devlin disagrees between these disntictions and differentiations
o He does not hide public and private domains. He says instead that
there is no meaningful distinction between private and public
o He gives an example:
Imagine that there is a house that is on a public highway it is
contiguous to the public highway. Most of the time the public
has unobstructed access to the public highway. Some of the
time the individual who owns that house might want to load or
unload things from a vehicle so he parks in the public highway
o Devlin believes that you can no more carve up the highway in public
and private than you can carve up morality
o He says: I do not think one can talk sensibily about private and public
morality any more than one can talk about public or private public. If
there is a public and private interest often in conflict the problem is
to reconcile the two
There is a necessity to balance rights. The homeowner’s
private right of access to the house, and the public’s right to
use the highway without obstruction.
o For Devlin, we have to balance the interest in public morality v. the
interest in private morality
This makes sense there are sometimes conflict of rights and
we have to balance them
o As Dworkin points out, Devlin leaves himself open to criticism by
what he means by public morality and the circumstances by which
public trumps private morality
Devlin says if society finds something abhorrent to its values, if
they feel disgust at something and thinks its immoral, and that
feeling is genuine, then how can society be denied the right t
eradicate it.

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o As Devlin notes limits of tolerance shifts. Sometimes, society can
accept certain practices that it once found disgusting
There must be toleration of maximum freedom that is
complied with the integrity of society
- Therefore, the case law we look at can reflect the Mill Devlin debate
- Dworkin didn’t find the community morality aspect wrong in Devlin, but the
idea of what constitutes a community’s morality.
- The cases reflect the Mill Devlin debate on harm and legal moralism,
especially where sexual morality is concerned.
o The cases show the court’s evolution from legal moralism to what
becomes a harm-based test for criminal legislation.
o Especially in the post-Charter era, the SCC will no longer subscribe to
the old notion that parliament can legislate against immorality as such
o It’s going to come to say that only legislation that prohibits
demonstrable harm will be able to withstand constitutional
In the Labaye case (criminal case) the court will clarify that
what harm entails is demonstrable to what is harm, and harm
does not include moral harm.
- Keegstra, in this respect was an easy case.
o The case was straight-forward was demonstrably provable harm
caused by hate-speech to the others.
o The court, in discussing the objective of 319(2), which criminalizes
hate speech, the court says that hate speech cause emotional damage
to members of the targeted group and harm to society
o Hate propaganda is not simply the product of its offensiveness but
stems from the real harm that it causes
There is no ambiguity or controversy about the harm in this
Both the dissent and majority agree in the objective (Mill
objective) to protecting others from harm
- In Butler, the issue of harm is much more opaque, muddy, and controverted
o In discussing the objective of the impugned legislation 163(8), which
criminalizes obscene publications (without giving a definition of what
legislation means by obscenity) the court says that the regulations of
public morals was no longer legitimate in a post-Charter world
The objective of maintaining conventional standards of
propriety, independently of harm to society is no longer
justified in light of individual liberty which underline the
Charter, unless there is harm to others
It also said in Butler, like Devlin but unlike Mill, that it counted
moral corruption as harm. (Page 384-5) the court says that
clearly, the notions of moral corruption and harm to society
are not distinct but are inexplicably linked
It is the moral corruption of society that leads to the
detrimental harm of society.
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