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James Sikemma

PHILOS 1B03 – FINAL EXAM REVIEW I: Problems of Democracy 1: JAMES MADISON - Faction: a group of individuals united by a common interest that is contrary to the interest of society as a whole and is “adverse to the rights of other citizens” (107) - Democracy and Faction: o Since democracy involves the will of the people, and since people are inclined to associate together over shared passions, there is little that democracy per se can do to stop the causes of faction - Solutions to the Problem of Faction: Remove causes or control effects 1) REMOVE CAUSES Either A) By destroying the liberty making it possible Or B) By giving everyone the same opinions, passions, and interests - Madison: Neither (A): because the remedy is ‘worse than the disease’ (107) Nor (B): because different opinions will always be formed according to individual experience and interest 2) CONTROL EFFECTS - If the faction is a minority its effects are controlled by The Republican Principle: o Legislators vote for those policies that will preserve individual rights against those who seek their destruction - If the faction is a majority its effects are controlled by A Republican Form of Government: o Representatives elected to limited terms of office voting on policies that would protect individual rights and the common interest within the territory to which such laws rightfully apply 2: JOHN LOCKE - The Separation of Powers - Those responsible for making laws (LEGISLATIVE POWER) should not be the same persons responsible for enforcing them (EXECUTIVE POWER) - Locke: ‘And because it may be too great temptation to human frailty…end of society and government.’ (115) - A Well-Ordered Commonwealth o Legislative Power: the power to make laws according to a constitution based on basic principles of justice, natural rights and freedoms … ‘a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made.’ (115) - Executive Power: the power to enforce the laws enacted by the Legislative Branch - Federative Power: the power to decide on matters of war and peace and to ensure public security - The Legislative is ‘only a fiduciary power’ o The power to make laws exists as a public trust; i.e. it has been entrusted to the state by the people o If the legislative power makes laws that are no longer for the people, they reserve the natural right to revolt against such a tyrannical government - Locke: ‘For all power given with trust for the attaining…even of their legislators’ (117) II: Liberty and Rights 1: ISAIAH BERLIN: NEGATIVE LIBERTY - We can be said to be ‘free’ insofar as we are free from external constraint (e.g. interference or coercion) o Liberty = absence of externally imposed constraints - Paradoxically, if individuals were unlimited in their freedom, unlimited interference would result - So paradoxically, freedom must be curtailed if it is to be collectively exercised - A frontier must be drawn… 1. Private Life  minimum liberty inviolable (or max liberty tolerable) 2. Public Authority  maximum constraint permissible (or minimum authority necessary) - Liberty is principally concerned with the area of control (125) - Meaning: what is the extent of legitimate public interference on private liberty  what is the extent of legitimate individual liberty? - Two Concepts of Liberty 1. Positive: freedom to…e.g. become a true self 2. Negative: freedom from…e.g. other’s ideas of self-fulfillment - Positive freedom and its problems o Positive conception of freedom requires that one identify not simply what they wish to be free from, but what defines a state of true freedom ▪ i.e. positive freedom involved filling the empty form of liberty (being unconstrained) with definite content (becoming constrained) of a society as a whole - The Logic of Positive Freedom: if you are an X, then the good is Y; in order for X to become Y, constraint Z must be imposed on X o Positive freedom involves imposing societal constraints on the choice of the good in terms of both its conception and fulfillment (126-7) - Negative Freedom and its benefits o A negative conception of freedom simply identifies the line in which external interference with one’s desires, choices and action would constitute unwarranted coercion ▪ i.e. Negative Freedom seeks to allow the empty form of liberty to be filled with the content each individual chooses within the established limits imposed by a just society (viz. equality of liberty) - The Logic of Negative Liberty: If you are an X, what is good, Y, is relative to X; constraint Z should be imposed on X if Y interferes with the liberty of P o Negative freedom involves the individual liberty to choose the good in terms of both conception and fulfillment within the bounds of a minimum constraint (viz. the harm principle) 2: CHARLES TAYLOR - If liberty is only negatively conceived, then a society that had quantitatively fewer constraining factors would be more liberal than a society having more o So, e.g., if Albanian Socialism restricts the freedom of religion, but had far fewer traffic laws than, e.g. Great Britain, the latter would, from a crudely negative conception, be less free - The embarrassment for the crude negative theory  by itself it does not make qualitative discriminations about what liberties are more significant than others o We alienate ourselves from power o We gave up participation and democratic power o Negative conception of liberty, freedom – free to do something as no one else is curtailing that activity o Freedom means becoming fully human and you’re not human if you do whatever you want - If we think that various freedoms (e.g. belief, speech, association, pursuit of happiness, etc.) should remain unconstrained then we have already made a positive liberty claim o Distinguishing between fundamental and subsidiary freedoms involves a decision about what is more or less important for the purposes of human beings - But what determines what humans think is of more or less importance? - The freedom of association/speech ranks higher than, for example, the freedom to pick up a coin from the ground - Strong Evaluation: distinguishing between first and second-order desires o First-Order Desire: having a desire, feeling of a want  the fact of desire o Second-Order Desire: desires about desires, wants about wants felt  the value we place on desires o How we coordinate the things we happen to desire (do I want to act on that desire?) - Second-Order Desires are Import-Attributing o While we can’t be wrong in the having of desires, we can be wrong in the import we attribute to them by means of our second-order desires - The fact that you have desire is neither wrong or right - We can only make the necessary qualitative distinctions about what liberties we value at the expense of others in relation to import-attributing second-order desires - No society that values liberty can fail to make import-attributing discriminations about what activities, what liberties, are more valuable than others o Thus, if negative liberty defines the minimum permissible constraints on individual freedom, it can only do so by means of defined positive liberties - We restrain people from doing whatever they want to do - We attribute more importance to freedom of speech, expression and seek to restrict them less because they fulfill our species’ essence in a way 3: RONALD DWORKIN - Do we have a right to liberty? o Many think so, but the idea of a right to liberty is, thinks Dworkin, mistaken - If by liberty we mean ‘the absence of constraints placed by a government upon what a man might do if he wants’ (131) then, there is no right to liberty - Why not? o Depends on how we conceive of rights … - Takes negative conception of Freedom and says that if we have this type of liberty, then there is no right to liberty - In the legal-political sphere, the concept of right belongs to the class of claims or entitlement o  those things one is entitled to cannot be legitimately constrained or denied by another - Hohfeldian Analysis – Rights: - Rights involve Claims o If X has a right, then X has a claim o If X has a claim, Y has a duty to not infringe upon it - You have a claim or entitled to something o If I have a right to security to person, then other has a duty to not infringe upon it in respect to me. o If I have right, I am making a claim to the community and government – you have a duty towards me to not detain me or punish me falsely o You have an obligation to uphold that person’s claim - Rights, in fact, fundamentally act as constraints on liberty - There cannot be a right to liberty as such because liberty does not involve the duty to observe the claims of others - Hohfeldian Analysis – Liberties: - Liberty involves No-Claims o If Y has a liberty, then Y has no-duty o If Y has no-duty, then X has no-claim on Y’s action - So, the right of e.g. equality or security is deserving of the appellation because to deny entitlement to these would cause harm and offend basic principles of justice - ‘Right to liberty’ misconception involves 2 disservices to political thought: o False conflict between liberty and other democratic values (e.g. between freedom of association and diversity & inclusion) o Tendency to cry foul when restrictions are imposed on freedoms (e.g. hate speech legislation curtailing free speech; freedom of religion curtailed by equality legislation, etc.) III: Law and Morality 1: J.S. MILL: ONE SIMPLE PRINCIPLE - If liberty is, as Berlin thinks, ‘the degree to which no man or body of men interferes with my activity’ (124), then what warrants or justifies the interference with or coercion of an individual by another (viz. the state)? - Mill’s Answer: o the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That 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. (133) - How morality and legality intersect or how we can keep them separate? - During Enlightenment, separation of Church and State and religious beliefs - Mill wants to ask what justifies the interference with or coherence of an individual to another? - His own good, either physical or moral, is not sufficient warrant. (133) o Only prevention and/or redressing of harm to others provides sufficient warrant for interference/coercion by the state - Harm: to cause, or threaten to cause injury, damage, or loss to an individual in mind, body or property o Mill: If anyone does an act hurtful to others, there is a prima facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. (133) o The only warrant is to prevent harm to others  an individual’s moral or physical well-being is not sufficient warrant o If anyone harms another, it is cause for the State or society to either prevent that or redress that - An individual’s own private and personal beliefs and behavior falls outside the sphere of state control. o In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign … (133) - Society only has an indirect interest in those actions and opinions private individuals do or have. If it were to have an active interest it would interfere in the lives of its citizens without sufficient warrant - The Appropriate Region of Human Liberty (134) o Freedom of conscience, of thought, feeling, opinion and sentiment and the expression thereof o Freedom of tastes and pursuits, to construct and follow a plan of life according to what we deem suited to that end o Freedom to associate with others who freely consent to such association - ALL without impediment from our fellow-creatures - No society in which these liberties are not, on the whole, respected, is free. 2: JAMES STEPHEN - Fundamental Issue: o Mill wants to say that ‘society has no business as society to decide anything to be wrong which concerns only the individual’ (135) - BUT as a part of society what concerns the individual necessarily is the concern of society as a whole - The line between private morality and public policy is not so easily drawn … - How can the State or the public be competent to determine any question whatever if it is not competent to decide that gross vice is a bad thing? (135) - Example: ‘an association for the purpose of … seducing women’ … - Question: Is it true that society has only an indirect interest in the thoughts, opinions, and associations of its citizenry, and that it is only warranted in directly interfering in the lives of private citizens in the event that one individual directly harms another? - Existing in society involves the interdependence of its members; independent existence is non-social - Interdependence involves mutual interest in the ‘thoughts, feelings, and opinions of persons’ - Society, as a whole, has a vested interest in such things because they inform individual conduct - Conduct involves a relation to another - If the state has the right to interfere in harmful conduct, it ought to have the right to interfere in the thoughts, feelings and opinions giving rise to such conduct - It may be right to point out that the State ought to exercise ‘great caution’ in deciding on issues of private morality and public policy - BUT o Mill’s conclusion that the State is unwarranted in interfering with individual opinions and the associations formed around them is unjustified - Stephen: It is one thing to point out a practical difficulty which limits the application of a principle and quite another to refute the principle itself. (137) 3: LORD DEVLIN: ENFORCEMENT OF MORALS - Fundamental Assumption: no society could exist that did not at the same time as having a shared political structure, have a shared moral structure. - Devlin: Society means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist - SO … to consider something illegal is fundamentally predicated on judging something to be immoral - The case of consent o Consent cannot be used by a victim to either warrant or excuse a criminal offense (e.g. murder) o Why not? - The reason why a man may not consent to the commission of an offence against himself beforehand or forgive it afterwards is because it is an offence against society…there are certain moral standards of behavior or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole (137, 138) - Meaning: 1) Criminal law reflects normative moral principles regarding human beings and their relations 2) While the law may be reformed with respect to criminal acts, the morality backing the law cannot be reformed without being rescinded 3) But to rescind the moral principle determining the criminal law would be to dissolve the normative moral principles of a community 4) Since this collective judgment constitutes the community itself the dissolution of such judgments would dissolve the state itself 4: HART: MORALITY CHANGES - The grounds for justifying the legal enforcement of morality are based on either a moderate or an extreme thesis o The Moderate Thesis: a shared sense of morality may bind a society together and give it a sense of identity o The Extreme Thesis: a shared sense of morality is identical to society - Lord Devlin seems to be a proponent of the moderate, but actually subscribes to the extreme thesis - Is it the case, either in principle or as a matter of historical fact, that immorality jeopardizes or weakens society? (140) o Devlin does not produce any evidence that this is the case, and it is not obvious in principle that something like, e.g., sexual immorality as such constitutes a public harm - The problem? o Hart: Lord Devlin’s belief in it, and his apparent indifference to the question of evidence, are at points traceable to an undiscussed assumption. This is that all morality – forms a single seamless web, so those who deviate from any part are likely or perhaps bound to deviate from the whole. (141) - The Seamless Web a
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