Law, Liberty and the Harm Principle

1
Law, Liberty and the Harm Principle

• "The only purpose for which power can be rightly
  exercised over any member of a civilized
  community against his will, is to prevent harm to
  others."
• John Stuart Mill, On Liberty.

2
The meaning of harm

• By "harm", Mill means only direct harm. That is,
  harm I do to others by harming myself does not
  count, unless I thereby fail to fulfill some
  specific, concrete obligation.
• At the same time, Mill allows the state to compel
  members of society to aid others

3
Harm principle justification

• An action should be illegal if and only if it
  does harm to others.
• Definition issue What is harm?
  (In practice, this definition would evolve.)
• American context Environmental laws (Is this
  minimum protection from harm?)
• Criminal vs. civil proceedings

4
Some examples of paternalistic legislation

• motorcycle helmet laws, seat belt laws, laws
  forbidding swimming without a lifeguard,
  prohibition of recreational drugs, laws
  forbidding gambling, laws regulating sexual
  conduct between consenting adults in private
  (including prostitution and sadism), prohibitions
  of gambling, usury laws, laws against dueling,...

5
More examples

• Statutes prohibiting assistingin a suicide, laws
  prohibiting the use of drugs not approved by the
  FDA, laws prohibiting the sale of uninspected
  meat (even when customer is forewarned),
  mandatory Social Security contributions,
  compulsory school attendance.

6
Mill's Exceptions

• Mill recognized two exceptions to the principle
• (i) children, and
• (ii) people living in "backward states of
  society".
• Stephen argued that these exceptions made Mill's
  principle empty.

7
Children vs. Adults

• Should children be protected from pornography, or
  from sexual relations with adults? from the use
  of alcohol, tobacco or drugs? from lack of
  education?
• If so, does the justification for doing so extend
  to protecting some or all adults from certain
  kinds of self-inflicted harm?

8
Criticisms of Mill

• Mill claims that each person is more keenly
  interested in his own welfare than is anyone
  else.
• Is this always so? What about those suffering
  severe depression or self-loathing?
• Is this sufficient? Are all adults always fully
  competent to act in their own best interests?

9
Purposes of punishment?

• Stephen also argues that the criminal law exists,
  not only to deter crimes that are dangerous to
  society, but "also for the sake of gratifying the
  feelings of hatred -- call it revenge,
  resentment, or what you will -- which the
  contemplation of such conduct excites in
  healthily constituted minds. " (LEF, p. 318)

10
The Definition of Harm

• Offense? See Feinberg article. Public sexual
  activity, including very exotic kinds. Public
  expressions of racist, sexist ideas, displays of
  swastikas? Pictures of aborted fetuses, or of
  victims of illegal abortions?
• Harm to others through a polluting of the moral
  atmosphere? Advertising and openly soliciting
  immoral activity.

11
Frustration of other-directed preferences?

• Stephen "It is surely a simple matter of fact
  that every human creature is deeply interested,
  not only in the conduct, but in the thoughts,
  feelings and opinions of millions of persons who
  stand in no assignable relation to him than that
  of being his fellow-creatures."

12
Weakening the social fabric?

• Do immoral acts weaken the cohesion of society by
  encouraging deviation from widely and deeply held
  norms? (Lord Devlin)
• Is there empirical support for such an effect?
  (Hart)

13
Indirect Harms

• Increased danger to others, through damage to
  one's own character? Does violation of one
  social norm make violation of others more likely?
  
• Increased burden on the charity of others,
  through damage to one's capacity to support
  oneself?

14
Right to Privacy (after Griswold)

• Stanley v. Georgia (1969) right to privacy
  protects the individuals viewing of pornography
  in his own home.
• Roe v. Wade (1973) right to privacy includes a
  womans (even a minor womans) right to terminate
  her pregnancy -- not a joint right, held by the
  couple involved.

15
Problems with extending a privacy right to
abortion

• Abortions typically take place in clinics, open
  to the public. Often, no long-term relationship
  between doctor and patient.
• Medical privacy is far from absolute -- Medicare
  regulations, FDA rules.
• If privacy enables the Court to avoid the
  question of when life begins, why does the point
  of viability affect the right?

16
More problems

• In the third trimester, abortions may be
  prohibited except where necessary for the life
  or health of the mother. What does this rule
  have to do with privacy?
• How can the Court justify sacrificing the life of
  the fetus for the health of the mother, no matter
  how insignificant the difference in health may
  be? This implies a stark inequality, inconsistent
  with the Courts professed agnosticism.

17
Bowers v. Hardwick (1986)

• Majority decided to uphold a Georgia statute
  making sodomy a crime.
• Majority opinion J. White
• Dissenting Blackmun

18
Is the freedom to commit sodomy a fundamental
right?

• A fundamental right must be deeply rooted in
  this Nations history and tradition. (Moore v.
  E. Cleveland, 1977)
• Proscriptions of sodomy have ancient roots
  common law.
• Forbidden by all 13 original states, by all but 3
  of 37 states at time of the ratification of the
  14th amendment.

19
Protected by privacy?

• Otherwise illegal conduct is not immunized by
  occurring in the home illegal drugs, firearms,
  stolen goods.
• A rational basis (minimal scrutiny)?
• Georgia holds that sodomy is immoral.
• If this is not a rational basis, then all laws
  representing moral choices would be invalidated.

20
Blackmuns Dissent

• Right to privacy is the key.
• Privacy does not protect only the traditional
  nuclear family.
• Privacy is protected, not for a social good, but
  because it includes a central part of an
  individuals life.
• Individuals define themselves through intimate
  sexual relationships.

21
Is Whites Position Consistent?

• In Griswold, White accepted that the state must
  not insist that all sex be procreative.
• What can be the rational moral objection to
  sodomy, once the sex/procreation link is severed?

22
Planned Parenthood v. Casey (1992)

• The reasoning of Roe is not defended -- there is
  no appeal to any supposed right of privacy.
• In addition, Roes trimester system is rejected.
  Instead, viability becomes central after
  viability, the independent essence of the second
  life can now be the object of state protection.

23
Liberty replaces privacy

• Importance of precedent (stare decisis) an
  entire generation has come of age free to assume
  Roes concept of liberty.
• Court must generate a specific rule it falls to
  us to give some real substance to the womans
  liberty to determine whether to carry the
  pregnancy to full term.

24
Limitations to liberty

• State may encourage philosophical and social
  arguments, adoption, state assistance to pregnant
  women.
• May inform a womans free choice -- but must not
  hinder it (before viability). No undue burden
  substantial obstacle.
• After viability, reaffirms Roe may prohibit
  abortion except where necessary for the life or
  health of the mother.

25
Scalias Dissent

• What makes this liberty Constitutionally
  protected? Nothing to do with whether it concerns
  my concept of existence, of meaning, of the
  universe, and of the mystery of human life.
  (Kennedy)
• Not protected, for the same reason bigamy is not
  
• Not mentioned in Constitution.
• Longstanding tradition of prohibition.

26
Scalias Dissent, cont.

• Begs the question is the fetus a living human
  being, or merely potential life. By what
  reasoned judgment does the Court reach this
  conclusion?
• Many decisions that are basic, intimate,
  deeply personal can be criminalized sodomy,
  bigamy, incest, suicide.

27
Lawrence v. Texas (2003)

• Overturns Bowers. Kennedy writing the majority
  opinion, OConnor concurring.
• Sodomy is a liberty protected by due process in
  14th amendment
• Tradition emerging awareness that liberty gives
  substantial protection to adults in decidingin
  matters pertaining to sex.
• Appeal to European Court of Human Rights.
• Stare decisis is not an inexorable command.

28
The Mystery passage from Planned Parenthood v.
Casey

• At the heart of liberty is the right to define
  ones concept of existence, of the meaning of the
  universe, and of the mystery of human life.

29
Rights to privacy and equal protection also
involved

• Privacy progression Griswold, Eisenstadt, Roe,
  Carey v. Population Services (1977) --
  invalidated a law barring the distribution of
  contraceptives to persons under 16.
• Also, the equal protection clause is relevant,
  as ruled in Romer v. Evans (1996).

30
Sodomy is not defined as a fundamental liberty

• Kennedy nowhere asserts (contrary to Bowers) that
  there is a fundamental liberty to commit sodomy.
• Consequently, the Texas law must pass only
  minimal scrutiny a rational relation to a
  legitimate purpose.

31
Enforcing morality is no longer legitimate

• Our obligation is to define the liberty of all,
  not to mandate our own moral code.

32
OConnors opinion

• OConnor stands by the reasoning in Bowers --
  sodomy is not a fundamental liberty.
• However, the Texas statute violates the equal
  protection clause the conduct (sodomy) is
  closely correlated with being homosexual. The
  act is directed toward gay persons as a class.

33
No legitimate purpose

• OConnor does not claim that the classification
  of homosexual/ heterosexual is suspect. So,
  minimal scrutiny?
• Moral disapproval of a group cannot be a
  legitimate governmental interest because legal
  classifications must not be drawn for the purpose
  of disadvantaging the group

34
Scalias Dissent

• Nowhere does the Court in Lawrence declare sodomy
  to be a fundamental liberty, or subject the Texas
  law to strict scrutiny.
• This effectively decrees the end of all moral
  legislation bigamy, same-sex marriage, adult
  incest, prostitution, masturbation, adultery,
  fornication, bestiality and obscenity

35
The role of social dissent

• In Planned Parenthood v. Casey, widespread social
  discontent with Roe was given as a reason for
  upholding Roe to overrule under fire would
  subvert the Courts legitimacy.
• In Lawrence, social dissent from Bowers is given
  as reason for overturning it. No consistency!

36
Against OConnor

• Every law prohibiting any conduct whatsoever is
  directed against a class, namely, those more
  likely than average to engage in the forbidden
  act.
• A law against public nudity targets conduct that
  is closely correlated with being a nudist.

37
Same Sex Marriage?

• The Court claims the present case does not
  involve whether the government must give formal
  recognition to any relationship that homosexual
  person seek to enter.
• Scalia Do not believe it.