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Law and Society
LWSO 413
Linda Mc Kay- Panos

D 24 C 23 B 22 A 21 C 20 A 19 D 18 B 17 D 16 C 15 D 14 A 12 C 10 D 9 LWSO 413: EXAM D 8 C 7 A 6 PREP What do liberal principles entail: o Individual vs. the state; rights and liberties; groups and their rights; o Liberalism has a lot to do with personal freedoms such as ownership of property, freedom of speech, religion, ... o In this course we are talking about the state’s ability to suppress your freedom and the states obligation to maybe enhance your freedom (ex. Hate speech: suppressing my speech BUT making a space for others that they were able to speak) – society and your individual rights o Talk about groups, unions (oldest association- the right to the freedom of association- a liberal right- it is okay for individuals to bang together/bargain together and make the employers bargain with them) – as long as it does not harm anyone o Newer group issues: issue of affiliation around the issue of religion/affiliation - o Property: to what extent, if at all, should the state be able to curtail my freedom to do what I want with my property in order to promote equality or equal opportunities for all? o 5 parts to the course: 1. The individual and the state a. Individuality= the right to be yourself b. Vices= porn, drugs, prostitution- can’t let you do those c. Autonomy= assisted suicide- control over your choices 2. Groups: hate speech, same sex relationships, polygamy; religious minorities; Quebec; unions 3. The liberal subject: women, aboriginal people Big themes: individual autonomy (do my rights ends where yours begin and what on earth would that mean? How do we take account of our affiliation with groups); issues of: gender, ethnicity, language, religion, sexual orientation, political groups. THE CHARTER  S.2 (a)= freedom of conscience/religion; (c) freedom of peaceful assembly; (d) freedom of association  S.2(B)= covers expression (freedom of thought, belief, opinion, and expression- freedom of press/other media of communication)  S.7= covers the rights to life, liberty, and security of the person (7-14 usually deal with legal rights)  S.8= secure of unreasonable search/seizure  S.9= right not to be arbitrarily detained/imprisoned  S.10= right on arrest/detention to be informed promptly, retain/instruct counsel without delay/be informed of the right; be informed by habeas corpus, and released if not lawful  S.15= equality  S.1= broad balancing provision- reasonable infringement of rights; Oaks test US CONSTITUTION: FIRSTAMENDMENT (ADOPTED 1791)  S.1= broad balancing provision  “congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging (shortening/cutting) the freedom of speech, or of the press or the right of the people to peaceably assemble, and to petition the government for a redress of grievances”  Applied to the states through: the due process clause of the 14 amendment  S1= “nor shall any state deprive any person of life, liberty, or property, without the due process of law” How did we get here?  The rise of human rights: [18 century literature/political philosophy; 19 century legal positivism(Jeremy Bentham and James Mill); + older British legal traditions] LYNN HUNT: INVENTING HUMAN RIGHTS  Fundamental insight: that a widespread sense that all human beings have an equal set of essential rights emerged in a particular historical moment out of particular historical conditions. o Statements of political rights were revolutionary at this time but came from somewhere o It takes a particular kind of understand of the self to accept this view of human rights o Looked at autonomy of the individual and not the group – individuals as a separate entity  This shows: Mill’s ideas didn’t emerge from a vacuum but from ideas that had been circulating previously (i.e. liberalism has a family tree) – lots of diff. things happening at the time – lots of writing and political upheavels  Hunt’s central question= “how did these men, living in societies built on slavery, subordination, and seemingly natural subservience, ever come to imagine men not at all like them and in some cases women too as equals? How did equality of rights become a “self-evident” truth in such unlikely places? It is astounding that men such as Jefferson (a slave owner) and Lafayette an aristocrat, could speak as they did of the self-evident, inalienable rights of all men”  The language of human rights emerged in the late 18 century; her take “human rights are difficult to pin down because their definition, indeed their very existence, depends on EMOTION AS MUCH AS REASON”, the claim of self-evidence relied ultimately on an emotional appeal: it is convincing if it strikes a chord within each person., moreover we are most certain that a human right is at issue when we feel horrified by its violation” – when people see this happening, they feel bad about it and see it as a right everyone should have U.S. DECLARATION OF INDEPENDENCE (1776)  When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate/equal station to which the laws of nature and of nature’s god entitle them, a decent respect to the opinions of mankind require that they should declare the causes which impel them to the separation.  “we hold these truths to become self-evident, that all men are created equal and they are endowed by their creator with certain unalienable rights, that among these are: life, liberty, and the pursuit of happiness”  To secure these rights, govts are instituted among men, deriving their just powers from the consent of the governed, and whenever any govt becomes destructive of these ends, it is the right of the people to alter/abolish it and to institute new govt. This replacing of govt should not be done lightly, and the declaration goes on to itemize the grievances against George III.  Approved by continental congress on July 4 1776 2 days after the vote to declare independence and after of a year of war with Britain FRENCH DECLARATION OFTHE RIGHTS OF MANAND CITIZEN (AUG. 27 1789)  “Never once mentioning king, nobility, or church, it declared the ‘natural, inalienable and sacred rights of man’ to be the foundation of any and all government. It assigned sovereignty to the nation, NOT to the king, and pronounced everyone equal before the law, thus opening positions to talent/merit and implicitly eliminating all privilege based on birth.  More striking than any particular guarantee was the universality of the claims made. References to: men, man, every man, all men, all citizens, each citizen, society, and every society dwarfed the single reference to the French people. U.N. UNIVERSALDECLARATION OF HUMAN RIGHTS (1948)  Preamble: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of: freedom, justice, and peace in the world...” KEY ELEMENTS OF CONSTRUCTING HUMAN RIGHTS  Internalizing a sense of what others are like (able to emphasize)  Recognizing all as having moral autonomy (many things causes this shift- Hunt says- novels/newspapers- imagining the internal life of people who are not you)  Autonomy depends on a sense of bodily integrity and separateness  Various cultural practices made this sense arise  The absolute authority of fathers over their children was questioned (audiences began watching theatrical performances/listening to music- portraiture/genre painting challenged the dominance of the great mythological/historical canvases of academic painting. Novels/newspapers proliferated making the stories of ordinary lives accessible to wide audience; torture as part of judicial process and most extreme forms of corporal punishment both came to be seen as unacceptable  All of these changes contribute to a sense of the separation and self possession of individual bodies along with possibility of empathy with others.  Political implications= government is not from god but from the people “political authority... derived from the innermost nature of individuals and their ability to create community through consent”  The rest of the book talks about the various ways in which a sense of empathy with other people was cultivated beginning in mid 18 century (through cultural practices such as novels about love/marriage/accounts of torture)  Argues that the self changes over time= “scholars have written at great length about the emergence of individualism and autonomy as doctrines, but much less about how the self itself might change over time. I agree with other historians that the meaning of the self changes over time and I believe that the experience- not just the idea of it changes for some people in decisive ways in the 18 century” CONCEPTS FROM HUNT 1. Evolution of selves 2. Empathy, autonomy, “feeling” that something must be a right 3. Liberalism as having a cultural inheritance 4. Legitimacy of government argued to rest on the consent of the governed (Locke here as well) 5. Rights rooted in belonging to a particular political community (see echoes of Burke here) • The types of rights spelled out in the 1689 English bill of rights: trial by jury, habeas corpus, petition and others. LEGALPOSITIVISM  Jeremy Bentham (late 18 /early 19 century reformed- positivist)  James Mill: “the sole purpose of government and the test for good government was that is promote the greatest good of the greatest number”  Governments create a secure environment for individuals to pursue their own interests – strive, determination, from the government THE WORLD BY 1859 1. Suffrage had been expanded greatly (still male) 2. industrial capitalism (workers against capitalists) 2. Anti-slavery agitation/anti-pornography agitation/anti-gin agitation (lots of upheaval) 3. New religions/beliefs 4. Darwin origins of species, 1859 4. Irish famine 1845-52 (british govt failing to act) 5. India a colony 5. British northAmerican colonies have responsible govt 6. US a power to be reckoned with economically/militarily but approach civil war JOHN STUART MILL: ON LIBERTY 1859 - English philosopher/economist- raised to be a strict utilitarian- rigid childhood- nervous breakdown age 21 - Struggled with h is sense that utilitarianism was too unemotional and that it failed to capture/understand the higher pleasures. - Famous essay: on liberty 1859- can be understood as attempt to: broaden the meaning of utility and show that utilitarianism can provide a strong protection of rights - Passionate belief: that individuality is something that should be protected/nurtured; his disgust at how he believes society squelches nonconformity – all about individuality; wants nonconformity - On liberty is a response/product of the Victorian period of England during which it was written. - Victorian period: characterized by a particular set of social values; emphasized hard work, thrift, and respectable comportment/behaviour; characterized by a series of reform movements (temperance movement) - Mill found these social institutions to be very restrictive; and saw their all consuming nature as a profound problem for mankind. - Chief concern: what is the scope of your freedom: freedom to use your property the way you want - Mill biography: 20 year relationship with married women Harriett taylor; free to marry once her husband died; “their greatest offense was to insist that their relationship was a superior type which should be the model for all marriages”; - Mill spoke out for many controversial/unpopular cases in his life (end to slavery/relief for the oppressed irish peasentry) it was his advocacy of feminism and his relationship with harriet that made him the target of abuse (intolerant public opinions at him) TERMS 1. Liberty= encompasses both civil and social liberty; “the nature and limits of the power of which can be legitimately exercised by society over the individual” Mill argues that society can only exert authority over behaviour that harms other people* anything else is an abrogation of individual freedom. 2. Tyranny of majority= the concept that in a democratic state the majority of people can impose its will on a minority; Mill sees this behaviour as “tyrannical” when it violates a claim that the minority has as a member of society. 3. Social contract= reflects the idea that society is something that people either explicitly/implicitly agreed to be part of. First formulated by Rousseau and defines “rights as those things that people would have agreed to have protected by society, and duties as those things ppl would have agreed to take on as obligations....” 4. Infallible= incapable of making a mistake/being wrong 5. Fallible= capable of making mistakes/being wrong 5. Infallibility= that no one is infallible; (according to Mill= nobody is right all the time; if someone supports to silence you, there is an idea here that the government knows better than you do, what should be said and whats not and therefore the governments opinion is taken as right because it is infallible- it doesn’t make mistakes- silencing someone else is an assertion of infallibility** SUMMARY  On liberty is about the “importance, to man and society, of a large variety in types of character, and of giving full freedom to human nature to expand itself in innumerable and conflicting direction”  Celebration of individuality/disdain for conformity  Mill rejects attempts either through legal coercion/social pressure to coerce people’s opinions and behaviour  Argues that: the only time coercion is acceptable is when a person’s behaviour harms other people; otherwise- society should treat diversity with respect*  He justifies the values of liberty through a utilitarian approach; he tries to show the positive effects of liberty on all people/society as a whole – individuality is so good that it does the best for the whole of society  He links liberty to the ability to progress and to avoid social stagnation  Liberty of opinion is valuable for 2 main reasons: 1. the unpopular opinion may be right 2. if the opinion is wrong, refuting it will allow people to better understand their own opinions  Liberty of action is valuable for parallel reasons: 1. the nonconformist may be correct or may have a way of life that best suits her needs if not anybody else’s 2. additionally, these nonconformists challenge social complacency, and keep society from stagnating  Chapter 1: meaning of liberty and introduces his argument in favor of respecting liberty to the degree it does not harm anybody else; chapter 2/3 (talk about why liberty of opinion/action are so valuable); chapter 4 (discusses the appropriate level of authority that society should have over the individual); chapter 5 (looks at particular examples/applications of the theory to clarify the meaning of his claims).  His essay has been critiqued for: being overly vague about the limitations of liberty; placing too much of an emphasis on the individual and for not making a useful distinction btw actions that only harm oneself and actions that harm others.  The essay provides: an impassioned defence of nonconformity as a positive good for society; and a reminder that no one can be completely sure that his/her way of life is the best/only way to live. KEY PASSAGES (2) 1. HARM PRINCIPLE= “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/moral is not sufficient warrant; he cannot be rightfully compelled to do/forebear because it will be better for him to do so, or because it will make him happier, because in the opinions of others, to do so would be wise or even right.  “these are good reasons for remonstrating with him/reasoning with him/ persuading him or entreating him BUT NOT FOR COMPELLING HIM/VISITING HIM WITH ANY EVIL IN CASE HE DO OTHERWISE”- to justify that the conduct from which it is desired to deter him must be calculated to produce evil to someone else.  In the part of the conduct which merely concerns himself, his independence, is, of right, absolute. “over himself, over his own body and mind, the individual is sovereign”  Mill is concerned with “civil or social liberty: the nature and limits of the power which can be legitimately exercised by society over the individual”  The paternalistic objection to the harm principle: o Does mill think of the state as taking care of you? NO o Diversity, value, pluralism* o They believe they should also be able to intervene 2. THEAPPROPRIATE DOMAIN OF HUMAN LIBERTY: a. “This then is the appropriate region of human liberty. It comprises first, the inward domain on consciousness, demanding liberty of conscience in the most comprehensive sense, liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle since it belongs to that part of the conduct of an individual which concerns other people, but, being almost of as much importance as the liberty of thought itself and resting in great part on the same reasons, is practically inseparable from it. Anything that you feel within yourself, you have that liberty; we have all these things (thoughts, feelings, opinions) -> free to think them so they should be our liberties. b. Secondly, the principles requires liberty of tastes and pursuits, of framing the plan of our life to suit our own character, of doing as we like, subjects to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. We can do whatever we want without stagnation, but no one can be harmed; even if you face criticism, its completely fine as long as there is no harm. c. Thirdly, from this liberty of each individual follows the liberty, within the same limits, of combination among individuals; freedom to unite for any purpose not involving harm to others; the persons combining being supposed to be of full age and not forced or deceived. You can unite with other people (unions), but no harming; protests are okay, as long as there is no violence; no harm whatsoever. d. the only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. (broad utility for mankind). Dependants -> and then become a hermit, you are harming them (falls under both harm principle as well and the domain of human liberty) SUMMARY a. liberty of conscience, thought, feeling, b. freedom of thought on all subjects; liberty of expressing/publishing opinions (practically inseparable from freedom of thought) c. liberty of tastes/pursuits to shape our lives to suit our characters d. freedom to unite with others for any purpose not harmful to others CHAPTER 1: Introduction  Limits scope of essay to : civil/social liberty  Essay will look at what kind of power society can legitimately exert over the individual (this question will become more important because some humans have entered a more civilized stage of development which presents “new conditions” where issues of individual liberty need to be addressed. As the world becomes more modern, more issues need to be discussed in the legal/social sense  Overview of the development of the concept of liberty: ancient Greece, Rome, England, liberty implied “protection against the tyranny of political rulers” (rulers/subjects had aggressive relationship); leader did not govern on will of people; his power seen as necessary and dangerous. o L= the struggle in history of Greece, Rome, and England between rulers and the ruled (against tyranny of those with power) o Liberty meant having a defence against the “beak and claws” of the “king of the vultures” o How do you protect people from this:  Patriots tried to limit these powers in 2 ways: 1. They gained immunities called: political liberties or rights (leader must obey this- if infringed they may rebel) 2. Constitutional checks developed: under which the community/representatives, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power; gained some power of consent over important acts of governance (ex. Parliament/written constitutions) Anew idea (from the late 18 century:  Government by “delegates” of the people (elected, temporary rulers- notion that the rulers now would automatically rule in the interests of the people); eventually men progressed to a point where they wanted their leaders to be their servants and to reflect their interests/will  When a democratic republic (US) developed; it was realized that people don’t rule themselves; those with power exercise it over those without power- majority may try to oppress a minority. The American example suggested that the majority would desire to oppress other parts of society (as burke predicted/Tocqueville witnessed)  Concept of a tyranny of the majority accepted by major thinkers; Mill argues: • Society can also tyrannize without using political means. Rather, the power of public opinion can be more stifling to individuality and dissent than any law could be. – public opinions may be more harmful than the government • He writes that there must be protection for people against the prevailing public opinions and the tendency of society to impose its values on others. Legal/social tyranny contemplated  “society can and does execute its own mandates, and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since though, not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself”  The problem: “How to find the fitting adjustment between individual independence and social control” o Some rules will be imposed by law and others by opinion/practice- what should they be? o Those with influence (money/class) generally think their opinions are the ones that should prevail o People seldom defend the right of the iconoclast or the heretic o The battle according to Mill has mainly been fought on the terrain of religious freedom, but such freedom usually results more from indifference than actual principle and is often limited in its scale. People say they are fighting for religion, but mostly just their own differences as individuals *L= he perceives that the English have a habit of disliking the idea of govt interfering in new domains, out of a habit of expecting govt to be tyrannical “the majority have not yet learned to feel the power of the govt their power, or its opinions their opinions” (but they will, and will try to legislate their morality – so we need principles to guide us!)  The question then is where/how to limit public opinion’s sway over individual independence: little consensus among nations about answer to this; people tend to believe that having strong feelings about something makes having reasons for that belief not necessary- FAILING TO REALIZE THAT: without reasons their beliefs are mere preferences often reflecting self-interest*  The times that people do question the imposition of public opinion on social standards is they are usually questioning what things society should like/dislike- NOT the question of whether society’s preferences should be imposed***  Mill talks about the “object of his essay”: he argues: • the only time individuals/society as a whole can interfere with individual liberty is for self-protection • he says that the argument posed that a certain law/public opinion might be for an individual’s own good/welfare doesn’t justify that the law/public opinion be used a coercive force; coercion is only acceptable when an individual poses a threat to other***. • You MAYARGUE WITHAN INDIVIDUALABOUT HISACTIONS BUT NOT TO COMPEL HIM • “OVER HIMSELF, OVER HIS OWN BODYAND MIND, THE INDIVIDUAL IS SOVEREIGN” The right of liberty doesn’t apply to: children/backward societies/ or those below age of legal maturity:  only when people are capable of learning from discussion that liberty holds otherwise these people must be taken care of; his principles apply to societies where people are “improved” such that they may be guided by persuasion, free/equal discussion and at that point compulsion is no longer an acceptable means of governing them.  He is NOT justifying liberty as an abstract right but he is basing it in utility on the permanent interests of mankind  He doesn’t speak of “those backward states of society in which the race itself may be considered as in its nonage”; backward states: totalitarian regimes(prior to constitutional checks and rights)  “despotism (absolute authority) is a legitimate mode of government in dealing with barbarians, provided the end be their improvements and the means justified by actually effecting that end. • “if a person causes harm to other actively/inactively, it is appropriate for society to condemn him legally or through general disapprobation” • Individuals can even be compelled to do good for other people (such as save a life) because doing otherwise would be to cause evil to another person • Society only has an INDIRECT interest in what a person does to himself or to other freely consenting people  Mill divides the appropriate sphere of human liberty into 3 categories: (falls under domain of liberty) 1. The domain of the conscience and liberty of individual thought and opinion 2. Planning ones own life and the liberty of tastes and pursuits 3. The liberty to unite with other consenting individuals for any purpose that does not harm others • These liberties reflect the idea that true freedom means: pursuing one’s own good in one’s own way as long as it does not prevent others from doing the same [these ideas contradict with society’s increasing tendency to demand conformity- unless moral conviction turns against this- the demand will only increase]  Introduction: one of the most important parts of his essay; contains basic structure of argument/major presuppositions  He describes civilization as: a struggle between society and the individual about which should have control over the individuals actions  He sees the world tipping towards a balance where society through laws/public opinion has far more power over the actions/thoughts of an individual than the individual has over himself.  HE REJECTS THIS by saying that society should have control ONLY over those actions that directly affect it/harm some of its members  Mill argues: • An individual harming himself or acting against his own good provides insufficient reason for others to interfere*** (rejects social interference with individual thought/liberty) – HARM PRINCIPLE • Society has no interest or only an indirect one in “that portion of a persons life and conduct which affects only himself or, if it also affects other, only with their free, voluntary, and undeceived consent and participation”  Mill is not just writing about laws, but also about “moral reprobation (disapproval, censure)” • an individual/group cannot rightly punish a person’s behaviour by (for ex. Treating him as an enemy) if his actions only affect himself; • he rejects the legitimacy of coercive opinion • external control only for actions that concern other people • hurtful acts may justify punishment either legally/socially: hurtful omissions, failures to fulfill ones duty- may justify punishment but more caution is needed to exercise compulsion • SOMETIMES there are reasons for not holding someone to his duty: 1. Either because a person is more likely to act well when left alone; OR 2. Because the compulsion would bring other evils  the idea of progress is integral to his essay: • Mill believes that individuals and society as a whole can improve themselves* • He considers different societies to exist on a clear hierarchy of value (barbaric societies are childlike without the necessary tools of self government; must be governed like children so they can eventually become capable of exercising their liberty) • Mill considers progress/civilization to be definite goods, and also expresses concern that with progress comes conformity and that such conformity could undermine further individual and social improvement  He calls his justification of liberty: utilitarian;  His defense of liberty will NOT be based on natural rights (such as those by Locke) or on metaphysical claims (Kant)  Mill bases his argument on what is best for mankind; and in doing so his arguments will “show the individual and social benefits of human liberty”  Mills utilitarianism o Grounded in the idea of utility but only in the largest sense “grounded on the permanent interests of man as a progressive being” o Sees a growing tendency for society to impress itself on individuals by opinion and increasingly by legislation, (prosecution of obscene literature/prohibition) BUTLER Questions that arose 1. What is harm? Is it a snowball effect? Does it cause harm to others like a domino effect? Are there purely “self- regarding” actions that affect you but nobody else? Exposing ourselves to risks of harm (health insurance issues here- end up in hospital cause no seatbelt is it fair for us to pay for this?) 2. In mills time there was no cars/seatbelts/insurance regime 3. Can society have a justifiable interest in preventing people from harming themselves or exposing themselves to risks of harm? Health insurance question 4. Tricky arena= mill speaks of our freedom of expression and publishing as being closely related to that domain of thought/conscience; which it seems to be- BUT WHAT IF our expression harms others? Will the sate be justified in punishing us for that kind of harm? 5. What happens when your speech harms somebody else? Blaming others, blackmailing (constitutional argument rise here whether that should be protected or punished) CHAPTER 2: OFTHE LIBERTY OFTHOUGHTAND DICUSSION • Mill turns to the issue of whether people either through their govt or on their own should be allowed to coerce or limit anyone else’s expression of opinion: SAYS THESEACTIONSARE ILLEGITIMATE* • He says even if only one person held a particular opinion mankind isn’t justified in silencing him; WHY? • Silencing these opinions is wrong because it robs “the human race, posterity as well as the existing generation”; it also robs those who disagree with these silenced opinions. • Purpose of chapter: what is the value of thought and discussion? Should we value the discussion of expression that is not true? • He is arguing we shouldn’t have legislation against freedom of speech and WHY it is important for society; there are some arguments/rationalization out there for restricting speeches of different kids; he looks at diff.Arguments and why they are right/wrong. • What is the ideal society for mill? An intellectual society; lots of people thinking (big and little thoughts- very expansive idea of what looks good- not driven by economic efficiency- 1. Why is humanity hurt by silencing opinions?ARGUMENTS FOR FREEDOM OF OPINION: • The suppressed opinion may be true= since human beings are not infallible, they have no authority to decide an issue for all people and to keep others from coming up with their own judgments. The reason why liberty of opinion is so often in danger is that in practice people tend to be confident in their own rightness, and excluding that in the infallibility of the world they come in contact with. He says this confidence is not justified and all people are hurt by silencing potentially true ideas. [POPULAR OPINIONS MAY BE FALSE] *what is the value of that one person? IT CAN MAKE A HUGE DIFFERENCE= that one person could be right and everyone else could be wrong, BUT the one person could also be wrong BUT thats okay because it strengthens everyone else’s ability to strengthen their own arguments. • “Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment f it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation- those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth, if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error. • According to Mills understanding in England; unpopular opinions existed but they smoldered underground “the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind”; society had more opinions, but they were afraid to voice them POSSIBLE CRITICISMS: 1. Criticism that even though people may be wrong they still have a duty to act on their “conscientious conviction” = when ppl are sure they are right it is cowardly not to act on that belief and to allow doctrines to be expressed that they believe will hurt mankind. • Mill= the only way that a person can be confident that he is right is if there is complete liberty to contradict and disprove his beliefs. Humans have the capacity to correct their mistakes but only through EXPERIENCEAND DISCUSSION (for society to move forward)*. Human judgment is valuable only if people remain open to criticism. Therefore the only time a person can be sure he is right if is he is constantly open to differing opinions (there must be something there to try to disprove his beliefs) 2. Governments have a duty to uphold certain beliefs that are important to the well being of society and only “bad” men would try and undermine these beliefs. • Mill= this argument relies on an assumption of infallibility (assuming govt beliefs are right/no fault); and the usefulness of an opinion is still something up for debate and requires discussion*; the truth of a belief is integral to whether it is desirable for it to be believed. • The assumption of infallibility about a certain question implies that one not only feels very sure about a belief but also the attempt to try to decide that question for other people; when we stifle dissenting opinions that is when we make horrible mistakes in history (as seen in Socrates/Jesus); they were put to death for blasphemy because their beliefs were radical for their times. • Should society be able to censor an opinion that rejects a common moral belief or the existence of god and a future state? He gives the example of emperor Marcus aureluis (a just/kind man who persecuted Christianity, failing to see its value to society)- Mill argues that if one is to accept the legitimacy of punishing irreligious opinions, one must also accept that if one felt, like Marcus, that Christianity was dangerous one would also be justified in punishing Christianity. 3. “it is not conscientiousness but cowardice to shrink from acting on their opinions and allow doctrines which they honestly think dangerous to the welfare of mankind either in this life or in another, to be scattered abroad without restraint, because other people, in less enlightened times, have persecuted opinions now believed to be true. Governments do make mistakes but they also still need to act. • Mill= it would be better for individuals to come to this wisdom themselves have to have it forced upon them unless you can argue/entertain the possibility that you are wrong or someone else is wrong you will never really know/understand whats right and the truth of it “complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of actions, and no other terms can a being with human faculties have any rational assurance of being right” • he says it is useful for everyone to at least hold some belief; but it does not mean that people should be required to believe it (that would be a moral infallibility shifting to a political infallibility) • he says imagine a state religion (church of religion for ex. Before about 1800): o civic disabilities for being catholic/protestant dissenter or having other faiths; o he says you will get people who are too honest too lie, or those who get to lie easily (catholics couldn’t be th fully trusted--- the atheist issue here- wouldn’t be allowed to swear oath in court; by 19 century didn’t matter what religion u belonged to- but u must believe in something) 4. That truth may be justifiably persecuted because persecution is something that truth should have to face and it will always survive. • Mill= this is harshly unfair to those who actually are persecuted for holding true ideas; by discovering something true these people have performed a great service to humanity; supporting the persecution of these people suggests that their contributions are not truly being valued* • it is wrong to assume that “truth always triumphs over persecution” because it might take centuries for the truth to remerge after it is suppressed (ex. Martin Luther- reformation of catholic church put down 20 times before him)- it is mere sentimentality to think that truth is stronger than error even if truth is rediscovered later. • The argument that truth benefits from or at least isn’t harmed by a bit of persecution, that truth always prevails: is false he says; truth doesn’t have this capacity, the only advantage is that it tends to be discovered again later; he says it isn’t good to be a martyr (he says no truths can really get repressed); he argues no truth can be suppressed this way and that its not good. • He saw habits of intolerance and a willingness to persecute still being a lively possibility in England o a blasphemy case and a couple in which non-believers weren’t allowed to testify; o a willingness to tolerate objectionable ideas but socially quarantine them o mill says: “who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, les it should land them in something which would admit of being considered irreligious/immoral?” o (conduct towards muslims and hindus in india) 5. Since we do not actually put dissenters to death any more, no true opinion will ever be extinguished. • Mill= legal persecution for opinions is still significant in society (ex. Blasphemy/atheism). There is also NO GUARANTEE, given general public opinion that more extreme forms of legal persecution will not re-emerge. There also continues to be social intolerance of dissent; • He argues that societal intolerance causes people to hide their views and therefore stifles intellectualism and independent thought; stifling free thinking hurts truth no matter whether a particular instance of free thinking leads to false conclusions. • Mill is looking at issues of freedom of thought and of opinion; he attempts to justify the importance of this freedom by showing its social benefits- for him, diversity of opinion is a positive societal good. 6. His argument: that dissention opinions may be true- brings up important points: • It highlights that mill believes that moral truths do exist- thus in defining liberty, mill does not say that all opinions are equally valid; he is not a relativist; not saying all things can be true; he is saying any single idea MIGHT be true and that for this reason no idea can be dismissed since truth is a benefit to progress. • Mill tries to show the contingency (possibility) of popular beliefs about truth while going to great lengths to not actually state that any popular views about things like religion are wrong: to do this he shows that in the past people have been persecuted for what is not believed to be true; he created a logical situation that if you support persecuting “false” views then you are required to accept your persecution if you are a minority a specific issue- he dismisses the persecution of false views without condemning modern views as being false. 7. Mills examples of persecuted truths reflect some of his rhetorical strategies in this essay: he is very conscious of his audience in 19 century England; uses example of crucifixion of Christ to resonate with his readers (choosing familiar/uncontroversial examples) in order to make broader moral claims. Keep in mind, England did not have the same legal protection of liberty that it has today; uses examples so he does not get into trouble with law. 8. It is worth thinking about the importance of Mill’s assumptions in the existence of truth to his justification for freedom of opinion: if nobody could be wrong/right, would this require tolerance/respect of difference, or could the strongest opinion simply try to defeat all others? He doesn’t try to answer this because truths existence is assumed throughout- he is persuasive*(Mill cannot be biased towards one opinion – if he says something is the truth he is being infallible which he is against) MILL IMAGINES A TOTAL OF 3 CASES IN WHICH A PERSON PUTS FORWARD AN UNPOPULAR OPINION: 1. The received opinions are false and the dissenting opinion is true: o Value of dissenting opinion? Already contemplated; society needs to know the truth o If the opinions are true, why would discussion of them be valuable to those who hold them?  Mill= the value of questioning/asking so that the meaning of the opinion is alive in the mind of the person who supposedly believes it (ex. Of Christians not being really alive to what the precepts they supposedly hold require of them; e.g. not judging, etc..); Christians have truth in non-judgement but cases where they still judge, so they do not follow their own truth.  Trouble: is it inevitable that once truth is accepted it will immediately start losing its hold on peoples consciences?  Mill= not necessarily, the nature of education; the teachers of mankind should substitute for this here; they should pretend to be dissenters in order to teach. Teachers should present dissenting opinions even if the truth has been established 2. The received opinions are true and the dissenting opinion is false o “however unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as dead dogma, not a living true. 3. Neither is wholly true or wholly false= they share the truth between them; and the nonconforming opinion is needed to supply the remainder of the truth of which the received doctrine embodies only a part. *we need these partial truths* *what is the value of truth; we have freedom of speech so we can have free debates*; likes debates  Mill thinks: testing your opinion against the strongest arguments of someone else is the best way to think through it and be confident that your beliefs are true CHAPTER 2: PART 2 1. He explained how popular opinions might be false, now goes on to make arguments in favour of freedom of opinion 2. EVEN IF THE POPULAR OPINION IS TRUE, IF IT IS NOT DEBATED IT WILL BECOME “DEAD DOGMA”= if truth is held as a prejudice then people won’t fully understand it and they won’t understand how to refute objection to it. Dissent even if its false keeps alive the truth against which it dissents. POTENTIALCRITICISMS: 1. One could say that people should be taught the grounds for their opinions and that having been taught these grounds, they do not then merely hold prejudices but really understand the basis of their opinions. • Mill= in cases where differing opinions are possible, understanding the truth requires dispelling arguments to the contrary. If a person can’t refute objections than he can’t properly be said to understand his own opinion. And further, he must hear these objections from ppl who actually believe them, because it is only these people who can show the full force of the arguments. Responding to objections is so important that is no dissenters exist, it is necessary to imagine them and to come up with the most persuasive arguments that they could make. 2 It is not necessary for mankind in general to be familiar with potential objections to their beliefs, but only for philosophers/theologians to be thus aware. • Mill= this objection does not weaken his argument for free discussion because dissenters still must be given a voice with which to object to opinions. In the catholic church there is a clear distinction between common people and the intellectuals BUT in England, every person is considered to be responsible for his choices; it is also practically impossible to keep writings accessible to the intellectuals away from the common ppl.  What about the argument that common men don’t need to understand all of this? That they can leave this thinking business to someone more educated and wiser? = mill says that even if we grant it still means that free discussion needs to take place, even if just by philosophers. 3 If the opinions are true, why would discussion of them be valuable to those who hold them 4 IFATRUE OPINION IS NOT DEBATED, THE MEANING OFTHE OPINION ITSELF MAY BE LOST= this can be seen in the history of ethical/religious beliefs- when they stop being challenged- they lost their “living power” he says that Christianity faces such a situation where ppl’s beliefs are not reflected in their conduct. As a result ppl don’t truly understand the doctrines they hold dear and their misunderstandings lead to serious mistakes. POTENTIALCRITICISM: 1. It could be asked whether it is essential for “true knowledge” for some people to hold erroneous opinions. • Mill= having an increasing number of uncontested opinions is both “inevitable and indispensable” in the process of human improvement. HOWEVER this does not mean that the loss of debate is not a drawback and encourages teacher to try to compensate for the loss of dissent. IN THE CASE OF CONFLICTING DOCTRINES, PERHAPS THE MOST COMMON CASE IS THAT: INSTEAD OF ONE BEING TRUE AND ONE FALSE, THE TRUTH IS SOMEWHERE BETWEEN THEM= progress usually only substitutes one partial truth for another, the newer truth being more suited to the needs of the times. Dissenting/heretical opinions often reflect the partial truths not recognized in popular opinion bring attention to a “fragment of wisdom”. This can be seen in politics, where differing opinions keep both sides reasonable- IN ANY open question, the least popular side should be the most encouraged at the time- this side reflects the interests that are being neglected*** 1 POTENTIALCRITICISM: 1 It could be argued that some principles, such as those of Christianity are the whole truth, and if somebody disagrees, he is completely wrong. 2 In many ways Christian morality is “incomplete” and one-sided” and that some of the most important ethical ideas have been derived from Greek/roman sources. Argues that Christ himself intended his message to be incomplete, and that it is a mistake to reject secular supplements to Christian morality. Human imperfection implies that a diversity of opinion would be required to understand truth. 3 Argue that free expression should be allowed but only if it sticks to “fair discussion” 4 He says that it would likely only be dissenters who would be held to such a high standard of conduct 5 Ultimately, it is not laws place to restrict discussion in this way; public opinion must look at individual cases and hold both sides to the same standard Mill makes the case that: 6 If people hold a true opinion they will benefit from hearing dissenters argue against that opinion. 7 He thinks most people only know partial truths and that they might benefit from hearing other fragments of truth 8 His discussion reflects a particular conception of how people learn 9 He says that people learn through debate and through having their opinions challenged 10 Dissention opinions are socially useful because they help people to understand the real strength and limitations of their own beliefs. 11 He believes that the usefulness of dissenting opinions cannot be substituted for, neither when the unpopular view is partially true, nor when it is completely false. 12 Mill uses social benefit as the basis of his justification for liberty, it would seem that a person who believes in intolerance could simply say that any benefits of free opinion are outweighed by allowing something evil to be expressed 13 Mills claim about the need for dissent in order to truly understand one’s own opinions. Lectures: Mill observes that, in politics, we seem to need both a party of order and stability and a party of progress and reform. • How does this debating work to the greater benefit of all? This jostling over opinions has a salutary effect not on the partisans (who don’t accept the arguments of the other side) but on the bystanders. “Not the violent conflict between parts of the truth, but the quiet suppression of half of it, is the formidable evil; there is always hope when people are forced to listen to both sides; it is when they attend only to one that errors harden into prejudices, and truth itself ceases to have the effect of truth by being exaggerated into falsehood. “ (50-51) • Akind of summary, or recapitulation, of four key points (p. 50) 1. First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. 2. Secondly, though the silenced opinion be error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. 3. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. 4. [F]ourthly, the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience.” • Asort of side point that will be important later: the manner of discussion. Should people be bound to making their arguments in a temperate, decorous way? • Telling, sound arguments are often perceived as indecorous; Exaggerations, misrepresentations? Hard to object through legal mechanisms, since usually these are made in good faith • Invective, sarcasm, personal attacks etc? Usually recoil against dissenters, far more serviceable to those advocating prevailing opinions • Observes that generally arguments get more traction if presented calmly and honestly – Law and morality should not interfere – Question: assuming that this was true in 1859, is it still true, given the way that ideas are promulgated in our society now? • So: very high value on thought and discussion, grounded in the pursuit of a general good No grounds for suppression of expression R. v. Warman ---2001 BCSC 1771 -An essential right to free choice not to wear a bike helmet?--Is he discriminated against, since some others are exempted from s. 184 of the (R.S.B.C. 1996, c. 318) on the grounds of religion? --“However, while acknowledging the importance of freedom of choice, I conclude that society in the public interest must occasionally place constraints on this freedom” (para. 5). Cf. seatbelts. CHAPTER 3: OF INDIVIDUALITYAS ONE OFTHE ELEMENTS OFWELL-BEING  This chapter explores the nature of harm; the harm that coercion does to someone and talking about what we value and how we maybe can evaluate the thing when we are doing that utilitarian balancing act and what constitutes harm  Also responding to the argument that the state has an obligation to prevent people from harming themselves (the paternalistic objection to the harm principle (the idea that people will make decisions for you/help you out- basically giving power to the state to decide)  Chapter about: freedom to act on one’s opinions “to carry these out in their lives without hindrance (legal barrier/moral pressure); either physical or moral from their fellow men, so long as it is at their own risk/peril); about carrying out plans with the freedom of conscien
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