paternalism

Hart

It’s paternalism, designed to protect individuals against themselves, and not the moral principle that provides justification for law

  • Argued for position close to Mill’s + allowed for legal legislation to protect public decency but refused to add protection against offence based on what others do in private
  • A right to be protected from distress which is inseparable from bare knowledge that others are acting in ways you think wrong can’t be acknowledged by anyone who recognises individual liberty as a value
  • Question how can this be done in a principled way, consistent w/Mill? To distinguish b/w types of offences we can/should prohibit & those whose prohibition would interfere too much w/individual liberty & autonomy usually requires a moral standard on which to discriminate b/w offensive conduct which should be prohibited and conduct which shouldn’t – yet, drawing such distinctions seems contrary to Mill’s theory in his Notary public London lawyers book.
  • Distinguished:
  1. Critical morality – a statement attempting to capture what is morally true
  2. Conventional morality – a statement attempting to capture what most people believe to be true
  • Bix: conventional belief is that Dickens is greatest novelist of all times, but better view is that it’s Jane Austen. On one side, there are statements about reality and on the other statements about people’s beliefs. There may be a connection b/w them & they may sometimes merge.
  • Most of Devlin’s writings support the reading that he believes the law should enforce conventional morality

  • This is drawn from his argument re: society’s shared morality & its right to protect it by using law as means to enforce society’s conventional morality.
  • Me: strong argument against Devlin. If we were to enforce what most people believe ought to be, then anything could be done as long as majority would support it: in such a case, even the holocaust of Jews and the massacre of Bosnians in Srebrenica would have been justified on that basis. However, if we were to measure it against critical morality, we would have to look deeper than beliefs (and feelings) of majority or of the man in the jury box, to find out what is morally true. But question remains as to how that ought to be determined.