Hart was a legal positivist, meaning he took an approach to law in the social sciences and regarded law as a social fact. What the law is, he argued, and what it should be are two different issues. As he would say in his famous concept of law, morality can influence law, but laws and morality are separate social phenomena. Hart, in his reply to Devlin, agreed with the Wolfenden Report`s statement that “there must be an area of private morality or immorality which, in short and roughly, is not a matter of law.” This idea, according to Hart, had a close connection with the doctrine of John Stuart Mill in his essay On Liberty, which stated, “The only purpose for which power over a member of a civilized community can be lawfully exercised against his will is to avoid harming others.” Devlin`s relevant sense of morality is relative. One is to take into account the views of the ordinary person living in that society in order to determine the content of morality; in Devlin`s English terms, it is “the juror” whose opinion must be sought, or “the man of the Clapham omnibus.” In the application of criminal law, “the greatest possible individual freedom compatible with the integrity of society must be tolerated”. (Devlin, 1965, p. 16). Devlin says that the limits of tolerance are not simply reached when a majority does not like a practice; “No society,” he says, “can do without intolerance, indignation and disgust, they are the forces behind the moral law, and in fact it can be argued that if they or something similar are not present, society`s feelings cannot be heavy enough to deprive the individual of freedom of choice.” (Devlin, 1965, p. 17). In the late 1950s, it was doubtful in English society, at least from Devlin`s perspective, that there was enough intolerance, outrage and disgust to justify a criminal ban on homosexual conduct between consensual adults.
Devlin`s narrative unacceptably implies that a corrupt and immoral society has as much right to perpetuate itself as a decent society, provided it is able to integrate society. He also works, as we have just seen, with an unsatisfactory understanding of what morality is. This leaves open the possibility of another explanation of legal moralism, which does not make these mistakes and regards morality as rational, but also adheres to Devlin`s assertion, quoted at the beginning of the article, that “there is no area of morality into which the law must never enter.” His own narrative does not give a clear path, but his challenge to those who propose the principle of harm and a similar statute of limitations is to provide an adequate basis for isolating certain areas of state morality when passing its law. The third point does not help either. It would probably be tempting to say to our imaginary legislator, “You might call abortion murder and you might think that you have based your point of view on good reasons. But look around you; Virtually everyone thinks you`re wrong. So you just have to limit your views to others who share your views and not impose them on everyone. The legislator would have a simple answer to this question, namely that the argument is little more than a count. He seems to be returning to Lord Devlin`s territory, equating legal morality with moral beliefs and knee-jerk reactions. As we have seen, this will not be enough: if most people thought slavery was allowed, he would not do it this way. [12] None of these arguments contributes to our imaginary legislature acting illegitimately.
George`s argument is quite public, it can be made in terms of law rather than good; As an argument against homicide, it does not violate any principle of neutrality. And there is no objection to saying that this is a minority view. This is only the fourth argument that would show the illegitimacy of the actions of the imaginary legislator. For what it is worth, I believe George`s arguments are not persuasive and may simply prove false on the basis of substantial counter-arguments to his. But, of course, even if it`s true, this is exactly the kind of argument that Rawls and Nagel want to exclude from the debate, so they couldn`t help them draw in their premises the conclusion of illegitimacy they`re trying to establish. The best arguments against George`s position would be excluded from the court. The most influential recent defense of the “harm principle” – by a theorist with a reasonable explanation of morality – is that of Joseph Raz (Raz, 1986). [5] I will discuss in a moment the basis of the principle of damages proposed by Raz. But first, a word about the original basis of Mill`s principle. Mill said utility was the ultimate attraction in all ethical matters.
But given other things Mill says about it, it`s first amazing why he should think utility supports the harm principle. For he also enunciated the principle of utility, according to which “actions are proportionately just because they tend to promote happiness, bad because they tend to produce the opposite of happiness” (Mill 1993, p. 7). The latter formulation seems to advise States to keep their options open in their legislation. “Do what you can to reverse unhappiness,” seems to be the advice, “and do what you can to promote happiness.” “Coercion to avoid harming others, if it reverses the misfortune; Coercion for other purposes, if that also serves the purpose. But, as we have just seen, coercion to prevent harmless misconduct is ruled out by Mill, whether or not such a measure is the best choice of the state to reverse the misfortune. It doesn`t matter if this harmless injustice makes everyone unhappy; It does not matter whether the coercion of those who maintain it would remove misery: the state must not exercise coercion and misery must remain. Did the confusion here produce Mill`s masterpiece? In my opinion, Raz`s account succeeds in establishing the very great importance of autonomy in political morality. With regard to the limits of the law, the Committee notes that great caution is required in the application of imprisonment, taking into account what this may do for the appropriateness of the prisoner`s valid options. Caution is important even with less coercion. However, it does not appear to be able to support the injury principle, since coercive considerations are not clearly based solely on considerations giving rise to injury. Since law has been recognized as an effective instrument of social order, there has been an ongoing debate about its relationship to morality.
According to Paton, morality or ethics is a study of the greater good. In general, morality has been defined as: all kinds of rules, norms, principles, or norms by which people regulate, direct, and control their relationships with themselves and others. Law and morality both have a common origin. In fact, morality has led to laws. The state put its own sanctions behind moral rules and enforced them. These rules have been called law. In Hart`s words, the law of every modern state shows, in a thousand points, the influence of both accepted social morality and the broader moral ideal. Law and morality both have a common goal, insofar as both direct people`s actions in such a way as to produce the highest degree of social and individual good.