The Moral Limits of the Criminal Law - Term Paper Example

Notions of “the common good” serve to identify a common interest within a population of people. Those things or activities that match “the common good” are thus identified as good in a moral, and political, sense. Because a common good is shared by most, if not everyone, in the political community, there is a strong interest in codifying those things in the public interest verbatim into that community’s laws. However, this impulse ought to always be accompanied by a dose of restraint, so that the authoritative nature of law is not used to excess, and against the interests (or rights) of individual members of the community. Evidently, law exists not to protect the common good, but to ensure the legitimate freedoms of individual members of society. This is best expressed by J.S. Mill’s formulation of the harm principle, which states, “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others” (Mill, 1906, p. 12). In this sense, laws ought to preserve individual freedoms insofar as those freedoms are valuable, and ought to restrict those freedoms to the extent that they limit the freedoms of others. Applied to a number of contemporary issues, the harm principle and its role in creating the “coexistence of freedoms” provides a workable framework through which scholars may understand, interpret, and evaluate existing law. The harm principle is a check on the power of any authority, whether that authority exists in the form of a system of laws, a government, or a private organization. It allows for individuals to have control over their thoughts and body, and as such provides a useful framework for appraising the normative validity of laws. But the principle is not without its objections, such as how one defines “harm”. Some have extended the notion of harm to an affront to one’s sensibilities (Feinberg, 1985). However, what is clear about J.S. Mill’s formulation of the principle is that freedom is at stake, not the external sensibilities of other members of society. That is, it seems Mill’s harm principle refers to those freedoms all human beings necessitate in order to survive, which may include the freedom to not be killed for no reason, the freedom to not have one’s property taken away arbitrarily, and so on. These essential freedoms are the only appropriate subject of the harm principles, not subjective states of emotions, tastes, or particular external sensibilities. The harm principle not only looks after the freedoms of individuals, but the equal rights of every member of society to pursue his interests. Since man is not isolated from society in cases where he needs law, freedom must have external restraint because the “freedom of each man may continually collide with the equal and concurrent freedom of others” (Tunc, 1983, p. 14). According to Tunc (1983), a basic aim of law is to provide for the coexistence of freedoms. Legal institutions like property, contracts, and family are available to all members of society because to restrict the rights of one arbitrarily is an unjust limit on his or her freedoms. In the case of limiting a person’s right to own property or enter into contracts, one comes across violations of the harm principle. Because basic legal institutions are necessary for individuals to pursue their livelihood with basic freedoms, limiting access to those institutions is an example of harm. For instance, on this view, depriving someone of all private property by seizing it and selling it to other parties is a case of harm, since property is necessary for a human being to survive. By not engaging in harm, laws achieve the coexistence of freedoms for all. The coexistence of freedoms is not the same as the common good insofar as the common good represents the subjective interests of society as a whole, removing from that any notion of individual concerns. Coexistence of freedoms refers to objective rights of individuals to engage in behaviors according to their own volition, without restrictions by the actions of other individuals in society. Thus, laws aimed at achieving the common good are clearly different from those laws aimed at achieving the coexistence of freedoms. By understanding this fundamental differences in the aims of laws, one can begin to understand how certain laws are formed and the reasons given for their continued existence. On the previously established understanding of the legitimacy of freedom-preserving laws, one may also understand the normative legitimacy of both kinds of laws. In the United States, the use, sale, and development of cannabis are illegal and have been, on the federal level, since the Controlled Substances Act of 1970. Repeatedly, the Supreme Court has upheld this legislation in its ruling. In the case of United States v. Oakland Cannabis Buyers' Cooperative in particular, the Court ruled that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act” (United States v. Oakland Cannabis Buyers' Cooperative, 2001). Since there are no common-law crimes in federal law, federal courts are required to allow Congress to define federal crimes. And because the Controlled Substances Act did not recognize the medical necessity “loophole”, it was judged wrong for the Court to recognize such an exception to the law. That is, it is wrong for the court to change the value-judgments of the Congress with respect to the law. Thus, it seems laws that do not include a medical exception to marijuana use are based on a value-judgment of the 1970 session of Congress, in its attempt to achieve the common good. As such, the law seems illegitimate. On the issue of gay marriage, laws vary by state. In California state law, the infamous Proposition 8 was declared unconstitutional by a federal court (Perry v. Schwarzenegger, 2010). In his decision, Judge Walker decided that there was no “rational basis” in arbitrarily denying the rights (and freedoms) of gay persons to marriage licenses. Proposition 8 sought to amend the California constitution to disallow gay marriages. The findings of the Court in this decision reflect the harm principle: that without harm done to society, same-sex marriages as such are not immoral institutions. Additionally, to deny access to legal institutions for some members of society is harm in itself and conflicts the coexistence of freedoms principle of law. Because tradition and morality are not sufficient bases for discrimination, Judge Walker applied the notion of “strict scrutiny” to protect minority homosexuals (Perry v. Schwarzenegger, 2010). Another hotly debated topic in American politics and law is that of abortion rights. But, unlike in the cases of same-sex marriage and medical marijuana use, the harm principle’s application to abortion is unclear. Because the rights of a fetus are debatable, one cannot say definitively that the harm principle does not apply in this case. In the case of Roe v. Wade (1973), it was decided that legal restrictions of the right of a woman to get an abortion violate due process rights. Under the standard of strict scrutiny, and in the opinion of Justice Harry Blackmun, the “right of privacy… is broad enough to encompass a woman's decision whether or not to terminate her pregnancy” (Roe v. Wade, 1973). While the issue of prenatal rights is controversial, the rights of mothers to life, liberty, and control of their bodies are not. This was the conclusion of the United States Supreme Court as it upheld the right to an abortion as a fundamental right. Welfare law is controversial because its justification largely relies on notions of morality as it applies to the poor and disadvantaged. Food stamps law, one specific example of welfare in the United States, is a federal-assistance program for individuals below the poverty line. The Food Stamp Act of 1964 gave permanence to the Food Stamp Program in the United States. Food stamps are an interesting case study of common good legislation within the broader category of welfare legislation, which includes such programs as Medicaid, Head Start, and Job Corps. Food stamps are particularly interesting because they reflect common good value-judgments as applied to agriculture in society. In the words of President Lyndon B. Johnson, who signed the Act into law, food stamps are “a realistic and responsible step toward the fuller and wiser use of an agricultural abundance” (Hathorn, 1999). The most value-laden of these words is “responsible”, which implies that the government—and its laws—is responsible for the appropriate allocation of “agricultural abundance”. But, according to the thought that the coexistence of freedoms is the only legitimate aim of law, this issue is arguable. A related topic is Medicaid, which also emerged from the 1960s as part of welfare legislation. Medicaid is a program for low-income individuals to receive health benefits paid for with federal and state funds. Eligibility for Medicaid is structured around an individual’s (or family’s) resources (Perkins, 1967). Like food stamps, Medicaid is intended to provide for the common good, but there is also an argument to be made that it contributes to the coexistence of freedoms. If the harm principle says that actions are legitimate until they conflict with the freedoms of others in society, then a contrary principle states that if the negation of freedom is bad, then the enhancement of freedom is good. By giving individuals additional freedoms to food and medical care, these welfare programs seem to provide for both a common good and enhanced freedoms for all. However, this argument assumes that resources like food and healthcare exist independent of those parties who create and supply these services. These service providers have freedoms too, and these freedoms are restricted to the same extent as those who benefit from their services. Thus, in these cases, the common good is opposed to the coexistence of freedoms among society’s members. Upon examining the basic aims and functions of laws, one realizes that motivations centered on the harm principle and those centered on the common good principle are fundamentally at odds with each other. This realization is confirmed through a reasonable examination of contemporary political and legal debates in the United States. To provide for a common good, the law must necessarily restrict arbitrarily the freedoms and rights of some to benefit others; who receives this benefit is always subject to the value-judgments of those who create the laws. If J.S. Mill’s conception of the harm principle is right, it seems there is no legitimate use of legal authority to act upon these value-judgments and to restrict individual freedoms to achieve them. Works Cited Feinberg, J. (1985). Offense to Others: The Moral Limits of the Criminal Law. Oxford: Oxford University Press. Hathorn, B. (1999). The Iron Triangle in Action: The Federal Food Stamp Program. National Social Science Journal, 12, 48. Mill, J. (1906). On Liberty. New York: Alfred A. Knopf. Perkins, W. (1967). Effects of Medicare and Title XIX on House-Staff Training Programs. Journal of the American Medical Association, 201, 310-313. Perry v. Schwarzenegger, 704 (United States District Court for the Northern District of California August 4, 2010). Roe v. Wade, 70-18 (United States Supreme Court January 22, 1973). Tunc, A. (1983). International Encyclopedia of Comparative Law. New York: Springer. United States v. Oakland Cannabis Buyers' Cooperative, 00-151 (United States Supreme Court March 28, 2001). Read More