Unit 4 The Aims of Law

Aims of Law  The proper aims of law and the common good are not the same thing. The appropriate aims of law are those aspects of the common good that the law should support by means of authoritative rules.

Aims of Law  To decide appropriate aims of law, we must consider the nature of common good and the practical and moral limits of authoritative disposition.  While oriented towards the common good, the proper aims of law may be limited by the fact that law involves exercise of authority.

Utilitarian Approach  If punishment can cause pain to the wrongdoer and didn’t do anything else, it was not justified.  However the utilitarian approach determined several factors that justify criminal punishment.

 General deterrence-deter other members of society  Special deterrence-deter the wrongdoer himself from future crimes  Incapacitation-Punish to limit the opportunity to commit future crimes  Rehabilitation-Change the moral character of the criminal Utilitarian Approach

John Stuart Mill  Follower of Bentham  Some pleasures are by their nature better or nobler than others  Intellectual pleasure vs. physical pleasure We should take a course of action that maximizes happiness for most people

Harm Principle  The only legitimate reason for society to restrict the liberty of one of its members is to prevent him from directly harming the interests of others  Personal conduct is purely a private matter  For Mill, the fact that behavior harms one’s self or is unpopular, vulgar, or immoral does not count as harm to others.

Harm Principle  To Mill, what counts as harm to others? He finds that (1) acts that directly diminish another’s well being; (2) failure to perform identifiable obligations one may have to others; (3) failure to perform one’s share of what is required for a decent common life in society, count as harm to others.

Harm Principle  This rule should apply both to speech and conduct. Restrictions on opinions cannot be justified - whether opinions expressed are true, false, or a mixture of the two – on grounds of harm to others.

Harm Principle  Restricting true opinions makes it harder for people to come to correct beliefs. Restricting false opinions make it harder for the falsity to become publicly clear.

Harm Principle  Restricting a mixture of the two makes it harder for people to distinguish the true part from the false part.  Restrictions on self-regarding conduct cannot be justified without showing a direct harmful effect on others.

Harm Principle  But the overall happiness can be diminished by actions that harm the self, so why does Mill choose “harm to others” as the standard?

Harm Principle  (1) Overall happiness will be better promoted by letting individuals decide what will promote their own happiness rather than letting lawmakers do it for them because individuals are better informed and more motivated to make the choice;  (2) experiments in living can discover better ways of living; restricting ways of living that do not harm others deprive both the experimenters and the community at large of the benefit of this knowledge;  (3) autonomy, the freedom to choose for oneself, has value independent of the choices made.

Harm Principle  Mill would permit laws intended to prevent harm to self in the case of children, mentally incompetent, and backward societies, as these individuals are not capable of caring for themselves.

Harm Principle  Regarding adults in civilized societies, laws to prevent harm to self could be justified in rare cases, e.g., prohibiting someone selling himself into slavery, where the action itself would undermine the individual’s own liberty.

Gerald Dworkin  Gerald Dworkin develops this idea in the notion of limited paternalism.  Paternalism is the view that legal restriction is permitted to protect or promote the subject’s good.

Gerald Dworkin  Dworkin argues Mill’s exceptions permitting legal restrictions to promote the subject’s own good are based upon the idea that it is reasonable to permit limitations on autonomy for the sake of autonomy.

Gerald Dworkin  Dworkin justifies this view under a test of “hypothetical consent” – that it is justified if it would rational for one to agree in advance to this restriction.  If you were to think about his clearly, rationally, and knowledgeably, this is what you would want to be done to and for you.

Gerald Dworkin  For Gerald Dworkin, two types of paternalistic restrictions are justifiable as protections, “or a kind of “social insurance,” against failures of knowledge or will: (a) actions that would greatly put at risk human goods necessary to exercise autonomy, such as health or a certain degree of education; (b) preventing actions made under duress that are irrevocable, life- altering, or very costly (e.g. suicide, abortion). If proscription is not justified, some legal requirement to wait or deliberate might be.

Patrick Devlin  Every society has its own moral code and the preservation of that moral code is essential to the well being of the society.

 Shared ideas of right and wrong=society’s moral code  When the code is violated it is weakened Patrick Devlin

Moral Legislation  The phrase “you can’t legislate morality” is true in some senses and false in others. Laws that attempt to legislate morality over time can affect behavior, habit, and public views of what is morally blameworthy.  Examples include laws against discrimination and punishing drunk driving.

 Critical morality consists in those moral norms that correctly prescribes what is to be done from a moral point of view and can be used to accurately criticize choices, beliefs, and attitudes.  Positive morality consists in those social norms that are in fact accepted within a society. Moral Legislation

 Patrick Devlin argues that critical morality is religious in nature and law should not enforce critical or religious morality, but should enforce positive morality.  Positive morality contributes to the bonds that unify society, discourages yielding to temptation, and promotes habits consistent with positive morality. Moral Legislation

 Devlin says refusal to countenance legislation that reinforces positive morality threatens society itself.  Hart challenges Devlin’s premises that private immorality threatens society and or that a society worth preserving should be defined by a common moral stance. Moral Legislation

 Another basis for morality as a factor in legislation is based upon paternalism.  Morality may be a human good in itself that makes for a better quality life, hence laws promoting morality may be justified as paternalism. Moral Legislation

 Robert George argues that critical morality should be the basis of morals legislation and that the common good of society benefits from more virtue and less vice. Moral Legislation

 Thus paternalism justifies morals legislation as a human good for the individual and the neo-Devlinian view of George justifies for the good of the community. Moral Legislation

 A third view is that a moral community is an ideal that is good in and of itself and pursuit of this ideal should be included in our definition of common good. Moral Legislation

 Some would argue, echoing Mill, that blocking human living experiments through morals legislation could block actual moral progress, which requires autonomy. Moral Legislation