John to Mill, an offence is something which we

John
Stuart Mill is highly regarded and considered one of the most influential
British philosophers within the 19th century1. Mill’s “Harm to Others’ principle states that
an individual can do whatever they please with the requirement that these
actions do not bring any harm to others. If a person’s actions only affect
himself, then the government as well as society should not be able to stop them
from doing so, this is inclusive of if these actions would harm the individual themselves. The harm
principle branches from another principle known as the ‘principle of utility’
which states that an individual should only act in ways that bring the ‘greatest
amount of happiness to the greatest number of people’2.

 

Mill distinguishes the difference
between harm and offense explaining that harm is something that would damage the rights we have as humans
or damage important things that benefit others. An example of harm would be not
paying taxes because cities rely on the money to take care of its community.
According to Mill, an offence is something which we would say ‘hurt our
feelings’ and are regarded less serious and therefore should not be prevented
as what may hurt one person’s feelings may not hurt another’s, therefore
offenses are not universal.3
As
individuals we may come to negative feelings or opinions of another’s action or
beliefs, even if these do not directly harm or affect our own interests. In
cases like this Mill would argue that as we have not directly been harmed this
is just offence.4

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The
harm principle is regarded as very significant as the belief that ‘no one should be prevented from acting in any way they
choose to do so providing that these acts are not invasive of the free acts of
others’ has become one of the basic principles of libertarian politics. As well
as this, the harm
principle aims to promote the utilitarian principle which in hand, promotes
happiness as well as freedom within society in promoting
equality of all races and genders.

 

This principle has been widely criticised
as many believe if this principle were to be followed directly, problems would
inevitably arise. A potential problem would be what to do with people who want
to end their own life which interestingly, Mill would disagree with this being
acceptable although it does follow his principle. It has been argued that no
individual is fully isolated and most actions would affect someone relating to
the individual. For example, if an individual was to become addicted to a Class
A drug, it can be argued that relatives or friends of this individual will
directly be affected as this can be very distressing. Another example of this is abortion
and how it is legally allowed up to a certain stage in pregnancy suggests the
law sees this as the stage when a foetus becomes an ‘other’.

 

Discuss the arguments put forward by Hart and
Devlin following the Wolfenden Report? 
(A.C. 2.2)

 

Under the 1885 Criminal Law Amendment Act, all activity of a
homosexual nature between males was illegal. After World War II the country saw
a huge increase in arrests and prosecutions regarding this matter and by the end
of 1954 within England and Wales there were over 1000 men in prison for committing
homosexual acts.5
In the 1950’s, issues of whether law
should follow morality were very hotly debated as there appeared to be a vast decline
in sexual morality. Following several trials, primarily that
of Alan
Turing and Lord Montagu, the government proceeded to set up a Departmental
Committee under Sir John Wolfenden to consider both homosexual offences and
prostitution.

 

The Wolfenden Report recommended that prostitution
and homosexuality should be legalised on the provision there were certain
restrictions as at the time many Englishmen
still thought of homosexuality, prostitution, and pornography being immoral
however not an offence. Lord Devlin and Professor Hart had very conflicting views on these
findings as Devlin opposed findings while Hart approved. The purpose of the
report was ‘to preserve public order
and decency, to protect the citizen from what is offensive and injurious. The
law should not intervene in the private lives of citizens further than
necessary to carry out the above purpose6.’

 

Devlin’s
philosophy and argument takes a solely idealist approach to the role of law within
society, he argued that the judgment of a society made collectively should primarily
lead the enforcement of laws against behavior both in private and public that
would be deemed as immoral. 7
He believed a form of common
morality, was necessary to keep society together and therefore the law had a
duty to keep common morality upheld. Devlin stated that law without morality
destroys freedom of conscience and saw it as a ‘paved road to tyranny’. He
argued that the criminal legal system was required to respect and reinforce the
morals within of society order to prevent social order from unravelling.

 

Hart who was influenced by John
Stuart Mill led the opposition to this and approved of the Wolfenden report
arguing that using law to enforce moral value was morally undesirable and unnecessary
while warning against the potential dangers of
populism.  He questioned why the morality of few citizens of the
population can be justification for preventing people doing what they please in
private. He based this idea on the theory that most people’s views are heavily
influenced by superstition and prejudice. 

  

While Devlin and Hart both raised important points, Devlin’s principles have been said to be
primarily focused on the majority rule while Harts is seen to be more humanistic as well as personal.

 

 

3) Evaluate
3 recent law cases which highlight the law and morality debate

The first case I will be evaluating is Pretty v United Kingdom 2002. Mrs
Diane Pretty was diagnosed as terminally ill
with Motor- Neurone Disease. As a result of this, she wished to obtain the
right to request medical help so she could control the manner and timing of her
death. On top of this, she requested to be provided with a guarantee that her
husband would not be prosecuted for assisting her suicide in any way. Permission
was later refused

as
The House of Lords rejected her case. They held
that the right to life did not include the right to die as well as that the right to private life was not
inclusive of a right to control how and when to die.

 

Diane took
her case to the European Court of Human Rights to appeal arguing that the right
to life included a right to choose whether to carry on with life. The court
disagreed however, they stated they said that the ban on assisted suicide in
the UK was fully justified in aid to protect vulnerable individuals8.
Diane unfortunately passed away on 11th May 2002, with her case receiving huge coverage
worldwide. She was also later backed and supported by the Voluntary Euthanasia
Society. I disagree with the court’s decision as once diagnosed terminally ill,
morally a human should have the right to die with dignity. This topic
highlights the controversial nature of euthanasia and is surrounded by
extremely important ethical considerations and begs the question of whether
there is a moral difference between killing somebody and letting them die
anyway.

 

The next case I will be
evaluating is that of R v R (1991) concerning
rape with marital exemptions and the changing of attitudes
within society. D had entered his wife’s parents home
where she was living and raped her after forcibly entering the property.9 The court’s held that the long-standing rule that a wife was
deemed to have given her consent irrevocably was no longer appropriate as moral
attitudes within the public had dramatically changed to this and now deemed
this a criminal offence. Lord
Keith saw this as an example of the common law evolving to stay current and
reflect changes within social as well as cultural developments10.

 

I agree with the
court’s decision within this case as the depriving his
wife of the right to say ‘no’ and therefore not giving consent which falls
under the definition of rape, although marital partners is still rape
and therefore as perceived as just as serious if the rape was to take place
outside of a marriage.

 

 

Finally, in the case of Gillick
v West Norfolk and Wisbech Area Health Authority 1986), Gillick; a Roman Catholic mother,
provided that any doctor would be acting unlawfully if they were to give any form
of contraception to her daughters without her consent.  It was argued that morally, as teenage
pregnancies would inevitably rise if the courts deemed that parental consent
was necessary, the judges may also have been seen to be encouraging under-age
sexual interactions if they did not. 

The court’s held that a doctor
may prescribe contraceptives to a girl under 16 if it is to prevent health
damages regardless of the possibility that it could assist a man to have unlawful
sex. Since Parliament had not legislated at the time, the courts had to make a
decision and in this case, Mrs. Gillick
lost. This brings morals into question as many believe preventing teenage
pregnancies and possible damage to health is a fair reason to provide an
underage girl with contraception as at 16 an individual is regarded to be aware
of the actions they are taking, and therefore for these reasons I agree with
the court’s rulings.

 

 

 

1 https://plato.stanford.edu/entries/mill-moral-political/

 

2 http://www.insightsonindia.com/2017/02/14/6-understand-harm-principle-discuss-relevance-principle-contemporary-india-also-examine-john-stuart-mills-opinion-harm-principle/

 

3 http://documents.routledge-interactive.s3.amazonaws.com/9781138793934/A2/Mill/MillHarmOffence.pdf

 

4 Criminalising
Harmful Conduct: The Harm Principle, its Limits and Continental Counterparts-
Nina Pursak- Hardback 2007

 

5 http://www.bbc.co.uk/news/live/uk-politics-parliaments-38684098

6http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4612&context=fss_papers

7 As
Margaret Thatcher declared, “There’s no such thing as
society, there are individual men and women and there are families.”

8 https://www.dignityindying.org.uk/assisted-dying/the-law/diane-pretty/

9 https://sixthformlaw.info/02_cases/mod6/cases_law_morality.htm

10 Sex, Morality, and the Law by Lori Gruen

 

 

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