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HUMA 1825 Note 15.docx

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York University
HUMA 1825
Neil Braganza

HUMA 1825 Note 15 Common sense - How is Mill’s position natural? It should be easy to imagine why the government should make laws to regulate people’s private morality o If its not hurting anyone, its consensual, then why should the government interfere with that?  The government is not only allowed, but has a positive duty to regulate private morality. - Dworkin tries to respond Mill’s perspective in a stronger-type of objection and a reply to Devlin. o Think not only of justice but also justification. Devlin - Begins with the Wolfenden report o Overhaul of criminal law in England about morality  Prostitution, homosexuality and gambling  Devlin evaluates this o He rejects the assumptions that inform this report o He starts by saying that the problem of lawmakers it often seems that they have very arbitrary reasons for deciding a certain practice is criminal or not criminal  There should be a law against that because it seems right  Devlin wants to think things through  When law is legislated about morality, they lose respect if they appear arbitrary or illogical – you need the laws to be grounded socially, accepted to be perceived as deserving respect, and preserved by people. o It says that private immorality is harmless.  Immorality (deeming something immoral) as long as it doesn’t affect by it (injured, hurt, or coerced) then it shouldn’t be criminal or punished  It is not enough for something to be immoral to be targeted by criminal sanctions  In addition to being immoral it has to harm someone to be sanctioned  Devlin argues and challenges the view that private immorality can ever be harmless. o Even though its consensual and private, it doesn’t mean that its private - He evaluates the position that private immorality shouldn’t be sanctioned o He described three types of thinking that hold this view  First: agnostic person: this is someone who believes that there is a right and wrong, he believes in a universal, moral law. He also thinks that people should decide on their own.  This is consistent with the idea that morality should be private  Second: deeply religious position: this believes that ultimately it is not up to the individual to decide on morality, and up to god. Therefore, human law has no business interfering in eternal moral truths. Leave that work to god – god will judge you.  Law is too blunt an instrument – it will do more harm than good. There is an arrogance or pride trying to play god on earth.  Third: this amounts to a nihilistic position that doesn’t believe that any universal aspect of law is possible. It is diverse and up to individual choice, therefore it can’t really happen.  It’s a general skepticism against any real type of morality - Devlin has three arguments against this whole perspective. o Those three personalities agree with one thing: the law should not regulate private morality. Morality is a private matter. o First argument: (Devlin pg.4) he says that for him as a judge it would be very difficult to rule about sentencing someone for a crime – how do you make a decision about that if you don’t have a sense of shared morality with people. You need some guidance from your community to make specific calls. It’s not just rule-bound; you have to feel it.  “I should feel handicapped if I felt like I was addressing an audience that had no sin” o Second argument: (Devlin pg.6-7) there are a lot of actions that we criminalize that would count as private, consensual activities – he says that if you look at our consent laws, you will realize that consent can never be used as a defence. I can’t give you my consent to kill me, therefore fading away the criminality.  He mentions euthanasia, suicide, abortion, killing-pacts, incest, etc.  They’re all consensual activities, therefore, they would (through Mill’s harm principle) be allowed. Since the liberty of one person is not being interfered with by another person. o You’re allowing people to decide to do what they want to for themselves.  This is a weak argument because he implicitly suggests that either you decriminalize all those things, or, you acknowledge that it is okay to criminalize actions that we would deem to be immoral, even though they’re just private.  This leads him to a consideration of why our legal system is mixed in this way. We acknowledge that in one hand, there is a concern for law, on the other there isn’t  Big part of the argument: you can ask where these laws against certain behaviours come from. They come from our religious past. Before, religion was our dominant influence, therefore there are some behaviours that are deemed criminal for religious reasons  We are now in a secular world and we have dropped the dependence on religious doctrine, and now making society function and maintaining order. There’s a neutral to keeping a smooth, functioning society.  Therefore, if you want to make a strong argument for legal moralism, you have to make a secular argument – it has to be about the proper functioning of society. o Fourth argument (Devlin, pg 10.) he defines what a society/ community is. If you think about what it is, it follows a community of ideas. Without sharing ideas on politics, morals and ethics, no society can exist. Each one of us has ideas of what is good and evil – it cannot be held private in a society where we live. F men and women try to make a society in which there are no fundamental agreements they will fail. If there is a common agreement that isn’t maintained, it will fall apart.  Society isn’t something that is held phyisically, but instead held in the common bonds of thought – if it was too loose the members would fall apart. The bondage must then be hard. The bondage is an obligation of mankind, therefore society must pay the price.  He defines society, and then certain things follow: society is a community of ideas, if we must protect society, we must protect the community of ideas.  If we don’t do this our society will disintegrate.  Lawm that is responsible for defending a community, must legislate morality. - This is a tradition that stretches far back. This is an idea that you can have great institutions and rules, but if you don’t have a moral sentiment, if the people don’t follow the spirit of the rules, then that institution will not succeed o We’ve seen this in Aquinas – natural law is an inclination. We acknowledge good and evil and that helps us find human law  You can’t have human law without the sense of morality to know what is right and wrong - Even Hart says that you cannot erase morality, despite separating it - Fuller and his social aspirations that people have expectation of each other’s behaviour are really necessary for a legal system to work. There’s a moral legislation that these rules presuppose. o Devlin - A society is a community of ideas, and if there is no commonality then people are not on the same page, and do not have the same expectations of each other’s behaviour. They do not draw from the same criticisms of behaviour. It’s the evaluation that matters and that isn’t reducible to law, but through a commonality of feelings What does it mean? - Harm – anything that is against the commonality of feelings causes harm - Devlin pg14. The law, therefore, should legislate morality, should defend certain views. There is no theoretical limit to the reach of law. o This means you don’t wait for a problem to become a crisis – you know that your society depends on a certain common feeling. You don’t wait for it to blossom; the law has a responsibility of being active to maintain the cynic virtues and sentiments that make a society cohesive.  Devlin pg15. This morality that needs to be defended by law is not determined (decided) by rational argument, but by common feeling.  He says that we need a jury – through this we acknowledge that leaving it up to average members of society and the public to decide morality, you realize that what we’re talking about is not a specialized knowledge, but something that is broadly shared. o This is an appeal to community. - If morality is just private matter, then the law has no business in dealing with it through Mill, however you wouldn’t be able to practice law if you don’t have a sense of communities values, this is why we have a jury system, laws against denying the using defence or justification for a crime, we have moralism in place of our legal system o This suggests that this is important to us, and why it’s necessary.  It’s not just about having the right rules, but the right feelings. Devlin’s Conclusions - Law is now a minimum standard we use for regulating and maintaining society. However, it doesn’t give the maximum aspiration for maintaining society – it is moral o Page 19: the last and biggest thing to remember is that the law is concerned with the minimum and not the maximum.  Morality goes to the heart and motivation that people have for following or not following laws. It goes to a very reflexive and reactionary stage  We can’t make rules about this – it is inherently limited device. - The relationship between law and morality is very unstable – you need to make decisions when you’re trying to found the boundary when law should interfere with morality o When you want to make these decisions you can’t have a cookie- cutter approach  Page 21 - It’s a coastline that constantly changes case by case.  Give people elbowroom to make calls based on how they can evaluate their situations.  It is like a line that divides land and sea – a coast line of
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