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HUMA 1825 Note 18.docx

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HUMA 1825
Neil Braganza

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 8 th 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 individual  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 accountability. o Where other regarding acts are concerned, we’re also responsible and accountable  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.  A  B  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 others 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. 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 challenges  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 case  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.  Therefore, the court insists that legal moralism is not a justifiable objection for criminalizing immorality o This was when the courts were the public guardians of public morality o Then, the objection was to encourage decency and implement the subjective opinions of right and wrong o In a post-Charter world, this won’t do – and at the same time will do  At least it says, that in a post-Charter world, the objection of legislation is to prevent harm to others. o Where obscene publications are concerned, the question is – are they harmful? Is there evidence that porn is harmful? In order to satisfy the second prong of the Oakes test (proportionality), the court has to find that there is proportionality with the objective of the legislation, and the means chosen to achieve that objective – the law that prohibits publication  There is a problem here – that is demonstrating a causal connection between an obscene publication and a problem to others  The problem isn’t irrefutable, empirical data – unlike those propositions, the social science data are mixed  The problem in demonstrating a causal connection in obscene publication and harm to others means that the court cannot establish the same causal link that it could between smoking and cancer.  Because there is no hard, social-science data, the court comes to the view that there exists a reasonable apprehension of harm  The link cannot be causally proved – you don’t need proof, it suffices if you have a reasonable apprehension of harm between view of porn and harm to women. o The court says: while a direct link may be difficult if not impossible to establish, it is reasonable to presume that expose to images bears a causal relations to changes in attitudes and beliefs  This means that they can reasonable presume that exposure to porn causes people (men) to have attitudinal changes towards women, and think of them in a way that degrades and dehumanizes them  These changes may lead to behavioural changes, but even if they don’t lead to behavioural changes in men – changes in their attitudes and beliefs to women will be harmful in some way. o Madame Justice Wilson in Towne Cinema (p.377): the problem here is that we know so little in the consequences we seek to avoid. Does obscenity degrade women? Does it promote violence? The most that can be said that the public has concluded that degrades human to a subhuman or physical dimension contributes to a subject of moral desensitization must be harmful  Therefore, it is presumed  Evidence or proof of harm is not required by court – it is sufficient to have this reasonable basis that harm comes from pornographic materials. The court doesn’t seek the proof of harm because the data is inconclusive o Scientific proof is not required – reason and common sense will often suffice. - What is then the test for obscene absent proof of harm? The court comes up with an amalgam – combination of community tolerance and harm-based test to assess the exploitation of sex in publication o Through the application of community standards of tolerance test with the harm-based test to what the community will stand to tolerate. o In the Butler case, they chose not to test them separately through the separate procedures, instead, we now have the Butler test  This is the test that Labaye modifies and changes to a strictly speaking harm’s based test. o Pg.397 – what does the Butler test say? The Court interprets and applies it in Labaye to get rid of the community standards test and to distill a strictly harms based test  Sopinka’s new test for obscenity applied to indecency in Labaye:  The Courts must determine as best they can what the community would tolerate of what others would be exposed to the basis of the degree of harm following disposure. Harm means that is predisposes persons to act in an antisocial manner as the physical and mental mistreatment by man. Antisocial conduct is conduct which society formally recognizes as incompatible with
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