PHILOSOPHY OF LAW ( 2nd. PART )
Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Given that human autonomy deserves prima facie moral respect, the question arises as to what are the limits of the state's legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm principle: "[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrantÖ. Over himself, over his own body and mind, the individual is sovereign" (Mill 1906, pp. 12-13). While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm.
Though Mill's view-or something like it-enjoys currency among the public, it has generated considerable controversy among philosophers of law and political philosophers. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior.
A .) Legal Moralism
Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others. According to this view, a person's freedom can legitimately be restricted simply because it conflicts with society's collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality.
The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:
[I]f men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. (Devlin 1965, p. 10).
Insofar as human beings cannot lead a meaningful existence outside of society, it follows, on Devlin's view, that the law can be used to preserve the shared morality as a means of preserving society itself.
H.L.A. Hart (1963) points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. Devlin attempts to conclude from the necessity of a shared social morality that it is permissible for the state to legislate sexual morality (in particular, to legislate against same-sex sexual relations), but Hart argues it is implausible to think that "deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society" (Hart 1963, p. 50). While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U.S. surrounding abortion and homosexuality.
B.) Legal Paternalism
Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls self-regarding actions when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves. As Gerald Dworkin describes it, a paternalist interference is an "interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced" (G. Dworkin 1972, p. 65). Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider.
Dworkin argues that Mill's view that a person "cannot rightfully be compelled to do or forbear because it will be better for him" (Mill 1906, p. 13) precludes paternalistic legislation to which fully rational individuals would agree. According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived. Thus, Dworkin concludes, the attainment of these basic goods can legitimately be promoted in certain circumstances by using the state's coercive force.
Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom. For example, Dworkin believes a fully rational adult would consent to paternalistic restrictions to protect her from making decisions that are "far-reaching, potentially dangerous and irreversible" (G. Dworkin 1972, p. 80). Nevertheless, he argues that there are limits to legitimate paternalism: (1) the state must show that the behavior governed by the proposed restriction involves the sort of harm that a rational person would want to avoid; (2) on the calculations of a fully rational person, the potential harm outweighs the benefits of the relevant behavior; and (3) the proposed restriction is the least restrictive alternative for protecting against the harm.
C.) The Offense Principle
Joel Feinberg believes the harm principle does not provide sufficient protection against the wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take for granted as being justified. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm (in the Millian sense) to others.
Accordingly, Feinberg argues the harm principle must be augmented by the offense principle, which he defines as follows: "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end" (Feinberg 1985). By 'offense,' Feinberg intends a subjective and objective element: the subjective element consists in the experience of an unpleasant mental state (e.g., shame, disgust, anxiety, embarrassment); the objective element consists in the existence of a wrongful cause of such a mental state.
