Tutorial Jurisprudence

1. Discuss on Mill’s Harm principles.

The harm principle holds that the actions of individuals should only be limited to prevent harm to
other individuals. John Stuart Mill articulated this principle in On Liberty, where he argued that,
"The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.” An equivalent was earlier stated in
France's Declaration of the Rights of Man and of the Citizen of 1789 as, "Liberty consists in the
freedom to do everything which injures no one else; hence the exercise of the natural rights of each
man has no limits except those which assure to the other members of the society the enjoyment of
the same rights. These limits can only be determined by law."

Mill's harm principle is distinct from the offence principle. The basis of comparison is that, in
some cases, psychological or social harm may be comparable to physical harm. The difference is
based on the assumption that offence may cause discomfort, but does not necessarily cause harm.
Offence meets the harm principle only if it is a wrong and also causes harm.

The harm principle states that the only actions that can be prevented are ones that create harm. In
other words, a person can do whatever he wants as long as his actions do not harm others. If a
person's actions only affect himself, then society, which includes the government, should not be
able to stop a person from doing what he wants. This even includes actions that a person may do
that would harm the person himself.

However, we cannot just stop there and think that Mill makes things seem so simple, because he
doesn't. If we were to stop our discussion of the harm principle at 'anyone can do whatever they
want just so long as it doesn't affect anyone else,' problems arise. One such problem may be what
to do with people who want to end their own life. Interestingly, Mill would actually say it would
not be okay for this to happen.

For this to make the most sense, we need to understand three important ideas that helped shape the
harm principle. The first is that the harm principle comes from another principle called the
principle of utility. The principle of utility states that people should only do those things that bring
the greatest amount of happiness to the greatest number of people. So, if a person is trying to decide
between two things, he should choose the option that makes the most people happy.
The second idea is that Mill says there is a difference between harm and offence. Harm is
something that would injure the rights of someone else or set back important interests that benefit
others. An example of harm would be assaulting someone, causing them injury. An offence,
according to Mill, is something that we would say 'hurt our feelings. These are less serious and
should not be prevented, because what may hurt one person's feelings may not hurt another's, and
so offences are not universal.

The third idea to understand is that it is very rare for an action to only affect the individual himself.
Mill argues that no person is truly isolated from others and that most actions do affect other people
in important ways.

2. Devlin opined that law will interfere to enforce morality in order to preserve the fabric of
society’. How does this theory operates in this modern society.

Devlin opined that law will interfere to enforce morality in order to preserve the fabric of society’.
How does this theory operates in this modern society.

Law without morality, said Devlin “… destroys freedom of conscience and is the paved road to
tyranny”. Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law
must respect and reinforce the moral norms of society in order to keep social order from
unravelling.

"Societies disintegrate from within more frequently than they are broken up by external pressures.
There is disintegration when no common morality is observed and history shows that the loosening
of moral bonds is often the first stage of disintegration, so that society is justified in taking the
same steps to preserve its moral code as it does to preserve its government... the suppression of
vice is as much the law's business as the suppression of subversive activities."

Devlin, "The Enforcement of Morals" (1959)

Devlin’s view was that any category of behaviour was capable of posing a threat to social
cohesion. Therefore, morals laws are justified to protect society against the disintegrating effects
of actions that undermine the morality of a society.
This social cohesion argument, i.e. the notion of a shared morality was he said necessary for the
survival of society. However, what is not clear is what “society” is and whether society's views are
always correct.

Devlin argued that immorality is what every right-minded person considered

immoral. Devlin argued that there could be no theoretical limit to the reach of law; no acts are
“none of the laws business”. (Margaret Thatcher once declared, "There's no such thing as society,
there are individual men and women and there are families.")

Devlin suggested that the common morality could be discerned by asking

"What is acceptable to the ordinary man, the man in the jury box, who might also be called the
reasonable man or the right minded man"

Devlin's guidelines:

a) Privacy should be respected.

b) Law should only intervene when society won't tolerate certain behaviour.
c) Law should be a minimum standard not a maximum standard.