legal enforcement of morality

what does Mill argue is the only end for which people are warranted in interfering with the liberty of anyone’s action?

self-protection

what does Mill argue is the only purpose for which power can rightfully be exercised over anyone against their will?

to prevent harm to others

(but this does not apply to children - require being cared for by others so must be protected against their own actions)

Mill: where someone does an act that is harmful to others, there is a prima facie case for _________________________

punishing him

According to Mill, if someone causes harm to others by inaction, he is still ____________________________

accountable to them for the injury

according to Mill, if a person’s action is harmful to others without violating any of their rights, may that person be justly punished by law?

NO - only by opinion

according to Mill, someone should have perfect legal and social freedom to do an action where ________________________

that action only affects the person doing it

what are 2 counter points Mill acknowledges to his argument that people should be able to do what they like so long as their actions only affect their own interests?

1. no person is an entirely isolated being: impossible for a person to do anything seriously hurtful to himself w/o disadvantaging people connected to him

2. even if a person does no direct harm to others, he is nevertheless injurious by example

Mill provides the following example: a man, through extravagance, becomes unable to pay his debts - he may justly be punished, BUT ________________________________

this is for the breach of duty to his creditors, not the extravagance

Mill: when a person disables himself, by purely self-regarding conduct, from the performance of some duty incumbent on him to the public, he is guilt of a social offence - e.g.:

nobody should be punished simply for being drunk, but a police officer should be punished for being drunk on duty

what does Mill contend is the strongest argument against the interference of the public with purely personal conduct?

when it does interfere, the odds are that it interferes wongly

Mill: on questions of ___________________________, the opinion of the public is likely more often right than wrong

social morality, duty to others

> this is because they are only required to judge their own interests

Mill: the opinion of the public on questions of _______________________________ is as likely to be wrong as right

self-regarding conduct

> this is because public opinion means (at best) some people’s opinion of what is good or bad for other people

according to Mill, which by measures CAN society justifiably express its dislike of a person’s conduct?

advice, persuasion, avoidance

Mill states that just because damage to the interests of others CAN alone justify the interference of society, it does not ALWAYS justify such interference. what example shows this?

someone who does well in an exam reaps benefit from the loss of others, but it is better for the general interest of society that people pursue their objects undeterred by these sorts of consequences

Mill: if a person saw someone attempting to cross an unsafe bridge and there was no time to warn him, they might _______________________ without any real infringement of his liberty because __________________________________

seize him

liberty consists in doing what one desires, and he does not desire to fall into the river

where someone is attempting to cross an unsafe bridge and there is NOT a certainty, but only a DANGER of harm, can a person seize him?

no - he can only warn him of the danger

Mill: if people must be allowed, in whatever concerns only themselves, to act as they like at their own peril, they must equally be free to _____________________________

consult with one another about what is fit to be so done

(whatever it is permitted to do, it must be permitted to advise to do)

> this is only doubtful where the instigator derives a personal benefit from his advice to promote an ‘evil’

Mill: fornication and gambling must be tolerated, but should a person be free to be a pimp, or to keep a gambling house?

yes

• following anything as an occupation and profiting by it cannot make an act criminal which would otherwise be admissible

no

• although the state is not warranted in deciding that such conduct affecting only the individual is good or bad, it is justified in assuming, if they regard it as bad, that its being so or not is a disputable question

• so they cannot be acting wrongly in seeking to exclude the influence of instigators who have a personal interest on the side that the state believes to be wrong

should the state indirectly discourage conduct which it deems contrary to the agent’s best interests, e.g. make alcohol more expensive? what does Mill argue?

this differs only in degree from prohibition, so is only justifiable if prohibition is justifiable

what does Mill argue is the most cogent reason for restricting the interference of the government?

the great evil of unnecessarily adding to its power

who argues that there may be grounds justifying the legal coercion of the individual other than the prevention of harm to others?

Hart

what did the Wolfenden Report recommend?

that legislation should be passed to suppress the offensive manifestations of prostitution, but not to make prostitution itself illegal

according to s.13 of the Wolfenden Report, what is the function of the criminal law?

to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others

what does s.61 of the Wolfenden Report state?

there must remain a realm of private morality and immorality which is not the law’s business

the Wolfenden Report recommended the RELAXATION of the law against ______________________________________________

homosexual practices between consenting adults in private

who argues that the suppression of vice is as much the law’s business as the suppression of subversive activities?

Devlin

Hart: interference with individual liberty may be thought an evil requiring justification for utilitarian reasons: ______________________________

it is itself the infliction of a special form of suffering on those whose desires are frustrated by the fear of punishment

Hart: unlike sexual impulses, the impulse to kill or steal is not __________________________

a recurrent and insistent part of daily life

> so resisting the temptation to commit these crimes is not something which affects the development or balance of the individual’s emotional life, happiness, or personality

how does Dworkin define ‘paternalism’?

the interference of a state or individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm

according to Dworkin, what conditions are an analysis of ‘X acts paternalistically towards Y by doing (or omitting) Z?

1. Z (or its omission) interferes with the liberty or autonomy of Y

2. X does so without Y’s consent

3. X does so only because X believes Z will improve the welfare of Y, or in some way promote Y’s interests, values, or good

how does Dworkin define ‘soft paternalism’?

the only conditions under which state paternalism is justified is when it is necessary to determine whether the person being interfered with is acting voluntarily and knowledgeably

In Mill’s example of a person about to cross an unsafe bridge, if we could not communicate the danger, what would a soft paternalist justify?

forcibly preventing the person from crossing the bridge in order to determine whether he knows about its condition

> if he knows, and still wants to cross, he must be allowed to proceed

in Mill’s example of a person about to cross an unsafe bridge, what would a hard paternalist say?

at least sometimes it may be permissible to prevent the person from crossing the bridge even if he knows of its condition

> e.g. entitled to prevent suicide

narrow paternalism is only concerned with the question of ____________

state coercion

what is broad paternalism concerned with?

any paternalistic action: state, institutional, or individual

what is weak paternalism, according to Dworkin?

it is legit to interfere with the means that agents choose to achieve their ends, if those means are likely to defeat those ends

> so if a person prefers safety to convenience then it is legit to force them to wear seatbelts

under weak paternalism, we may only interfere with mistakes about ____________

facts (not values)

> so if a person tries to jump out of a window believing he will float gently to the ground we may restrain him, but if he jumps because he believes it is important to be spontaneous then we may not

what is strong paternalism, according to Dworkin?

people may have confused, mistaken, or irrational ends and it is legit to interfere to prevent them from achieving those ends

> if a person prefers wind rustling through their hair to increased safety it is legit to make them wear helmets while motorcycling because their ends are irrational

what is pure paternalism?

where the class being protected = the class being interfered with

give an example of pure paternalism

preventing swimmers from swimming when lifeguards are present

what is impure paternalism?

where class of persons interfered with > class being protected

what is an example of moral paternalism?

banning prostitution for the prostitutes’ own good because it is morally corrupting to sell one’s sexual services

(even if the prostitutes make a decent living and their health is protected against disease)

what are the empirical and normative views of what is ‘good’?

empirical

• longer life, greater health, more income

normative

• being respected as an independent agent, having a right to make decisions for oneself, not having one’s autonomy infringed

Dworkin: one might believe that one cannot make people better off by infringing their autonomy in the same way that one cannot make a person better off by ________________________________________________________

putting them in a Nozickian experience machine (where they are floating in a tank but seem to be having lots of wonderful experiences)

Dworkin: could believe that sometimes paternalism is justifiable because:

1. consequentialism: more good than harm is produced

2. an individual’s (long-run) autonomy is advanced by restricting his (short-run) autonomy

   > e.g. preventing people from taking mind-destroying drugs better preserves their autonomy as a whole

what is moral contractualism?

if there are cases of justified paternalism, they are justified on the basis that we would agree to such interference, given suitable knowledge and suitable motivation

what do Sunstein and Thaler argue?

since people are such bad decision-makers, we should ‘nudge’ them in the direction of their own desired goals by orchestrating their choices so that they are more likely to do what achieves their ends

what is the cafeteria example of nudging?

in order to influence students to make healthier choices, the healthy food items are placed at eye-level whereas the unhealthy options are placed higher or lower

is nudging paternalistic?

only in a weak, libertarian sense

> it does not interfere with the person’s autonomy

what 3 potential objections to nudging does Dworkin give?

1. often occurs w/o the nudged being aware that they are being nudged

2. often works by harnessing defects in the thinking of those being nudged

3. some nudges are forms of objectionable manipulation

what example does Dworkin give of a non-transparent nudge?

where, in order to increase office workers’ payments for the coffee that they take from the coffee machine, a painting of a pair of eyes is hung above the coffee pot, and most workers either do not notice it or made no connection with the issue of payment

what is an example of a broad nudge?

a warning label on a cigarette packet

what example illustrates the question of whether autonomy is affected by both intentional and unintentional nudges?

if the cafeteria manager places food at random she still influences people’s choices - are the choices more autonomous in this case than where the food is placed in exactly the same way but deliberately in order to affect the choices?

how does nudging harness bad reasoning?

cafeteria example - the position of food is not a rational ground for choosing, so the nudge makes use of people’s non-rational tendencies

why do some argue that harnessing the irrational is problematic?

e.g. getting children to read by offering them money as an incentive is wrong - getting them to read for the wrong reasons

Dworkin: perhaps people perceive a process as manipulative only if ____________________________________________

they already disapprove of it for other reasons

why do Kantians argue that paternalistic lies are prima facie wrong?

because they are violations of our right as rational creatures to determine our ends, and the means to obtain them, for ourselves

Dworkin argues that being lied to does not affect choices - e.g.:

when a doctor tells a patient that he does not have a fatal disease, she is trying to prevent him from becoming depressed

why does Dworkin argue that it is not clear that having choices fail because of a lie affects autonomy?

• if it does then whenever a person, out of ignorance, has their choice fail they have acted non-autonomously

• but when I choose a medicine based on inaccurate info, and fail to get cured, it is not the case that my choice is medicine was not autonomous

how does Raz argue that autonomy and the harm principle are linked?

depriving a person of opportunities or of the ability to use them is a way of causing them harm

the narrow harm principle allows coercion only for _______________________________________________________

prevention of harm in the strict sense

the broad harm principle allows coercion for ________________________________________

prevention of pain, offence and perhaps some other injuries to a person as well

Raz: one harms another when _____________________________________________

one’s action makes the other person worse off than he was, or is entitled to be, in a way which affects his future wellbeing

what 2 objections does Raz offer to the harm principle?

1. the principle seems to forbid redistribution through taxation, and the provision of public goods out of public funds on a non-voluntary basis, as well as to proscribe schemes e.g. tax-finances educational and national health systems etc.

2. the only reason for coercively interfering with a person in order to prevent harm is that it is wrong to cause such harm. but if coercive interventions are justified on this ground then they used to enforce morality. if so why stop at the prevention of crime? - why not enforce the rest of morality?

Raz argues that the gov’s function is to promote morality, so:

• govs should promote the moral quality of the life of those whose lives and actions they can affect

• this rejects the harm principle according to the common conception, which regards the aim + function of the principle as being to curtail the freedom of govs to enforce morality

what different conception of the harm principle does Raz argue we should adopt?

where it is a principle about the proper way to enforce morality

> it is derivable from a morality which regards the personal autonomy as an essential ingredient of the good life

who argues that it is a misconception that harming a person is confined to acting in a way the result if which is that that person is worse off after the action than he was before?

Raz

> failing to improve another’s situation/denying what is due to him can be a harm

Raz argues that if the gov has a duty to promote the autonomy of people, the harm principle allows it to use coercion both:

1. in order to stop people from actions which would diminish people’s autonomy; AND

2. in order to force them to take actin which is required to improve people’s options and opportunities

Raz: given that people should lead autonomous lives, the state cannot ____________________________________________

force them to be moral

> using coercion invades autonomy and thus defeats the purpose of promoting it, unless it is done to promote autonomy by preventing harm

Raz argues that paternalism affecting matters which are of merely instrumental value does NOT interfere with autonomy if:

its effect is to improve safety, thus making the activities affected more likely to achieve their aim

> difference between risky sports (where the risk is part of the point) and the use of unsafe common consumer goods - participation in sports is intrinsically valuable; consumer goods are normally used for instrumental reasons

who argues that is is NOT true that respect for autonomy = creating as many options as possible?

Kimel

> certain options can reduce one’s overall autonomy - e.g. a decision to enter an employment contract which imposes far-reaching restrictions on alternative employment in the future

Raz argues that personal autonomy is only valuable when:

exercised in the pursuit of good

> e.g. pursuit of racist activities is much worse when done autonomously than when done because the person had no choice or was ignorant

who argues that law can change a society’s social morality?

Green

> e.g. attitudes towards homosexuality

what arguments does Green provide for not changing a morality?

• rule of law: expectations should be protected

• conserve an imperfect but adequate morality in deference to a society’s culture

  > BUT these constraints to do not apply to grossly homophobic or sexist moralities

Mill: law should not enforce morality unless ______________________________

it prevents harm to others

Hart: law should never enforce morality unless ___________________________________

doing so attains some good that outweighs the loss of liberty + happiness that comes with enforcement

Devlin argues that we should enforce morality provided that:

what is at issue is a moral standard whose breach an average person would regard with intolerance, indignation, and disgust

> Dworkin counters: that would be to give force to prejudices, and those do not even count as moral views

Raz: it is permissible to uphold social morality when ______________________________________

the morality enforced helps constitute a valuable life an the the ‘enforcement’ makes no or minimal use of coercion

what is the difference between social/positive morality and ideal/critical morality?

social/positive:

• morality that a society does in fact practice

ideal/critical:

• morality that a society ought to practice

what argument does Devlin provide for thinking that the law must be morally inert, and how does Green counter this?

Devlin: every society is constituted by its core morals; if they were to alter, this would bring a change of society. so law cannot change social morality because any change in a group’s morality would mean they were no longer the group they used to be

Green:

• but existence of society depends on other things too, e.g. population, territory, political institutions - anchor its existence as morality shifts

• a change in moral values would only bring a new society if the values that changed were central to that society’s identity

why does Green argue that our social morality of sex is defective?

• societies’ moralities are sexist and significantly limit the power of women to plan their lives

• girls and women are most at risk of rape and sexual victimisation

• women who have not been, and may never been, victims of rape nonetheless modify their lives for fear of it - e.g. avoid certain places, careful going out at certain times, think about how they dress

how does Green argue that our society supports/fails to prevent the sexual victimisation of women?

• associates consent to sex with enjoyment of sex

• embarrassment/fear of ‘killing the mood’

• much coerced/manipulated sex is socially tolerated

what is the Hart-Devlin debate?

whether the state may criminalise behaviour that is immoral, even if the behaviour poses no threat of demonstrable social harm

Devlin: sometimes it may be nec to use criminal law to preserve ________________________, even if __________________________________

shared moral stands

the prohibited conduct poses no obvious threat of social harm

how does Devlin argue that ‘harmless immoralities’ (e.g. private consensual homosexual sex) cause social harm?

• the morals offender might weaken himself by means of his ‘private vices’

  > e.g. by becoming an alcoholic he renders himself less useful to society

• the vice might becomes widespread

• morals offender may cause intangible harm to society by weakening the morals bonds that act as society’s cement

  > people who base their morals on religion and take those beliefs as a whole

  > so if one belief is removed, the whole structure of someone’s moral code collapses

According to Hart, what is a crucial flaw in Devlin’s argument?

at some point, substantial empirical evidence is needed to support the claim that private immoralities pose a significant threat to the existence of society

how does Hart respond to Devlin’s argument that morality is dependent on religion?

counties with increasing secularisation and liberalisation do not have citizens who have ‘chucked’ their morals out along with their religious beliefs

why does Devlin criticise the claim that legal and social coercion is justified only in order to prevent harm to others?

• denies society the right to protect itself by preserving its shared morality

• makes it impossible to take moral desert into account in criminal sentencing

• it is a simplistic view of the purpose of the criminal law that would require the repeal of many laws that liberals themselves would support

Devlin argues that the harm principle is inconsistent with:

• principles that moral considerations should play a role in gradation of punishment, and that the consent of the victim is generally not a defence to a criminal charge

• certain crimes e.g. cruelty to animals, incest, bestiality

how does Bassham argue that Devlin renders his view incoherent?

by resting his defence of legal moralism on conventional moral values and denying that the state may enforce doctrines in which citizens are entitled to disbelieve