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PHL271 Study Notes test 2.docx

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David Dyzenhaus

1 Did the Ontario Court of Appeal in Halpern side with Mills and Dworkins liberal views on the enforcement of morality and in so doing reject the Attorney Generals Devlinlike arguments 2 In contrast when it comes to R v MalmoLevine R v Cain would Mill and Dworkin have concerns about the way the majority of the Supreme Court goes beyond the harm principle but approve of Arbours dissent whereas Devlin would think the majoritys refusal to confine state coercion to the harm principle shows that his arguments are correct PHL271John Stuart MillOn LibertyM 24 Oct 2011Chapter 1Introduction CivilSocial Libertythe nature and limits of the power which can be legitimately exercised by society over the individual struggle between liberty and authority between subjects and governments throughout history ancient governments power was regarded as necessary but also as highly dangerous as a weapon which they would attempt to use against their subjects no less than against external enemies aim of patriots was to set limits to the power which the ruler should be suffered to exercise over the community this limitation was what they meant by libertyDone in 2 ways by giving subjects rights the ruler could not overpower and by constitutional checks by a body representing societys interests as a condition to the important acts of the governing power demand by subjects for elective and temporary rulers for complete security that government powers would not be abused to their disadvantage it was then wanted that rulers be identified with subjects that their interest and will be the interest and will of the nation SelfGovernmentnot the government of each by himself but of each by all the rest The Will of the Peoplemeans the will of the most numerous or most active part of the people The Majoritymay desire to oppress a part of their number and is an abuse of power that must be prevented Tyranny of the Majorityevil against which society must guard against and if it executes wrong mandates or those in which it has no power to deal with it is social tyranny so must have tyranny by society and magistrate protected against Where to place limit between individual independence and social control some rules of conduct must be imposed by law in the first place and by opinion on many things which are not fit subjects for the operation of the law the practical principle which guides them to their opinions on the regulation of human conduct is the feeling in each persons mind that everybody should be required to act as he and those with whom he sympathizes would like him to act mens opinions on what is laudable or blameable are affected by all the multifarious causes which influence their wishes in regard to the conduct of others and which are as numerous as those which determine their wishes on any other subject a large portion of the morality of the country emanates from its class interests and its feelings of class superiority another ground determining principle of the rules of conduct both in act and forbearance which have been enforce by law or opinion has been the servility of mankind towards the supposed preferences or aversions of their temporal masters or their gods the likings and dislikings of society or of some powerful portion of it are thus the main thing which has practically determined the rules laid down for general observance under the penalties of law or opinion religion is one of the most unequivocal cases of moral feelingreligion is difficult to get out of wherever the sentiment of the majority is still genuine and intense it is found to have abated little of its claim to be obeyedthere is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it The Harm Principle Principlethat the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is selfprotectionthat the only purpose for which power can be rightfully exercised over any member of civilized community against his will is to prevent harm to others
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