HUMA 1825 Test Note 5
- He argues against state interference and individual liberty with a minor
o He suggested that there are some pleasures that are superior to other
pleasures. Not all pleasures are the same.
For him, some pleasures contribute to happiness in ways that
cannot be measures
He split pleasure into two groups:
Lower pleasures: This is what the early utilitarians
were concerned with
o Any pursuit that provides you with immediate
o This is associated with short-term pleasures
o Consider Aristotle.
Lower pleasures feed appetite
Higher pleasures speak about what drives
They account for advances in
philosophy, science, etc.
o Therefore, the higher pleasures are our long-
o At the end of the day, Mill is a utilitarian, so he cannot envision a
government imposing on you.
- Mill’s intention is to protect the individual against the state. At the same time
he wants to protect the state against those who would use it for oppression
- Mill’s dissenting voice:
o It is important for people to discuss things that are disgusting,
unpopular, or unwanted.
Unless that speech causes direct harm (there is a causal
connection established) the state has no justification in limiting
- Mill believes that pleasure should be indicated through the notion of
happiness where people are educated about their long-term interests.
o However, happiness must have a broader fundamental approach than
self-interest or collected security.
- Mill differentiates legitimate state power from coercive power that the state
has over individuals.
o The state has a responsibility to not enforce morals unless harm is
proven. Otherwise, by questioning morality individuals are able to
shed light in the higher development of society, or to allow other
individuals to have a firmer grasp on their beliefs.
- The tyranny of the majority is a newfound principle that is only present in a
democratic society. o The tyranny is the prevailing opinion – intolerance towards minorities
and difference of opinion
o The problem in this regard is populism: elected officials tend to
perform actions that they know people will appreciate
o This forms the Charismatic authority that follows what the people
want and hides behind the majority’s voice.
- Mill’s harm principle works in order to defend against the tyranny of the
majority by protecting people’s individual liberties.
o The harm principle limits the government’s power, and that prevents
the government from enforcing conformity
It’s a measure to limit the abuse of power that the government
is capable of. This indirectly allows for freedom of expression
without fear of penality.
- Mill believes that truth is provisional and tentative in the sense that we have
the ability to know certain things, however we can also use that truth in a
o Truth, however, is only known if you can back it up with facts – part of
claiming something as truth is accepting the possibility that you may
be wrong, therefore requiring you to listen to other people’s opinions.
Therefore, it is necessary for the harm principle to allow and
protect the realm of debate and protect the marketplace of
ideas from the tyranny of the majority.
- Mill has three liberties: freedom of thought and conscience, freedom of
pursuing your own lifestyles, and freedom of association.
- Free expression, for Mill, is important under three reasons:
o First: the ability for us to express ourselves, as we want, helps us
realize ourselves as individuals
o Second: free expression allows us to arrive at “truth”. By discussing
ideas we can clarify the one true idea
o Third: It allows us to participate in democracy.
o Freedom of expression is not an absolute value in the sense that even
opinions lose their immunity from prosecution, when they are
expressed in circumstances to make a positive instigation to
- He evaluates the position that private morality shouldn’t be sanctioned: He
uses examples of three types of people who would support his claim
o 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 morality on his own – therefore, morality
should be private.
o Second: Deeply religious person: this is someone who believes that 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. Since Law is too blatant an instrument, it will do more harm than good since playing God on Earth is arrogant. Therefore, morality
should be private.
o Third: Nihilistic person: this is a person that doesn’t believe that any
universal aspect of law is possible. He believes that morality is diverse
and up to individual choice – therefore morality cannot be universal
- Devlin, however for the existence of one universal morality (legal moralism)
o He claims that as a judge, a shared-common belief system would help
guide decision making
o Society should have a common core-value
- Devlin offers an argument that you can either criminalize all consensual and
private activities, or allow all of them to be legal
o This is a weak argument because it uses bifurcation – the offering of
two extreme alternatives without any middle ground.
o The problem with his argument (for legal moralism) is the fact that it
heavily relies on religious background. Therefore, if you would want
to make a stronger argument for legal moralism, you have to create a
secular argument for the proper function of society.
- Devlin claims that a community is a community of ideas – without sharing
ideas on politics, ethics and morals, no society can exist.
o Society isn’t something that is held physically, but instead in the
common bonds of through – if that bond is too loose then the
members will fall apart.
Therefore, law, that is responsible for defending a community,
must legislate morality.
o The Law should legislate morality, and defend certain views that have
a common feeling. Law has the responsibility of being active to
maintain the cynic virtues and sentiments that makes a society
Therefore, law is not determined through rational argument,
but through common feeling.
- Devlin claims that law is a minimum standard we use for regulating and
maintaining society – it doesn’t give the maximum aspirations for
maintaining that society, but it is still moral.
o Law is a coastline that changes case by case and you must make a
penumbra of room to make calls for law.
- At the same time, people should not be able to rebel in the name of morality
o A rebel is not a good man because he interferes with the morality of
other people just because he disagrees.
o Therefore, according to Devlin, it is better to be the same rather than
go against the common feeling.
- Devlin claims that immoral actions are those that inhibit disgust.
o This however cannot be the basis of morality because disgust can be
triggered by false knowledge. Therefore, if you base morality on
disgust (false judgment), then you might as well base morality on false
alarms – Dworkin’s argument. - For Devlin, the appeal to moralism is that your morality connects you with all
beings, suggesting that morality has no role for self-criticism.
o Therefore, morality is an instant gratification that makes you happy
Dworkin argues against this by claiming that there isn’t enough
complexity and difficulty.
- Legal moralism is the argument that society should be a commonality of
ideas and feelings – it is the idea of the discussed principle of how we identify
what commonality is
o The consequence of this is that there is a severe limit to freedom of
expression (you can’t have moral rebellion)
o Legal moralism is also using criminal law to legislate morality.
- Devlin claims that there are no theoretical limits to the state’s power to our
- Morality is about being open to the right kind of reasons where the process
of evaluation is more important than the final product
o By evaluating our morality, we are able to come up with a better
version of morality.
- Dworkin offers a morality of discrimination in the sense that you must decide
between alternatives – by sifting through different alternatives you will find
the best one.
- Dworkin offers four kinds of bad reasoning
o Prejudice in the sense that you develop your ideas based on features
that people cannot control, then your judgment is irrational
o Emotions in the sense that it can give people a false sense of judgment
o Rationalization in the sense that you rely on standard evidence
(scientific) to rationalize someone’s merit.
o Parroting in the sense that you repeat the majority’s ideas without
forming your own.
- Dworkin claims that in order for law to relate to morality it has to be
consistent with all other similar positions relating to law.
o He has an argument where if you condemn homosexuals, you must
then also condemn fornicators.
o If this consistency isn’t held, then you cannot accept positions of
- According to Dworkin, judges must sift through arguments based on their
awareness and position of people’s feelings and determine which are good
- Therefore, for Dworkin morality is the very process of moral evaluation and
o The morality that occurs in society (The one that Devlin speaks of)
closes down the space of process by presuming morality and thus
undermines it. - Dworkin argues that more analysis in an argument results in the argument
being better. However, complexity for the sake of complexity is not moral.
- He’s a teacher in Eckville who would inculcate his students with anti-
o He claimed that Jews manipulated history, created the holocaust to
gain sympathy, and forced his students to recreate the work