Analyzing a Quote On Liberty by John Stuart Mill - Math Problem Example

Name University Course Tutor Date Analyzing a Quote: On Liberty At least each society in the world has set of laws to guide the conduct of its people. It is difficult to imagine a society that is not guided by law, morality, and every individual has the liberty to act as he pleases, for and against himself, and others. On the other hand, it is almost impossible to justify whether law should be used to enforce morality, or morality to enforce law. Criminal Law is commonly used as a tool of social engineering to regulate people’s behaviour in the society through penalizing individual acts that are deemed morally unacceptable to certain social groups in regards to the set standards. However, to some philosophers, such as John Stuart Mill, such laws may interfere with the liberty of the individual, who is an autonomous and sovereign being. Mill’s quote on liberty is applied in this analysis of the determining the extent and desirability to which Criminal Law can be used to regulate the social conduct of people. Mill states that:- “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant... The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”-John Stuart Mill (1859) On Liberty. Specifically, the analysis answers the primary question of whether or not it is desirable or even practicable for the English and Wales society, or any other society, for that matter, to use Criminal Law to enforce specific moral values. It determines the extent to which the legal agency system is entitled to prohibit and, or punish certain types of human conduct, that it terms immoral. References are made to relevant judicial decisions, recorded in primary and secondary sources. The relationship between law and morality is a significant controversy in western legal philosophy. Whenever the legal agency proposes legislation that limits people’s freedoms, Mill’s On Liberty (1865) is always consulted. The consultation is often on the text that the only circumstance in which authority can be rightfully imparted over any member of a civilized community against his will is to avoid harm to others. In On Liberty, Mill’s (1859:1) concern is with the nature and constraints of power which can be legitimately bestowed by the society over an individual. Mill’s concern is not with the societies that are in backward states because the race itself is immature, but with the civilized and democratic societies such as the United Kingdom and United States (1859:9). Thus, the term individual in the quote indicates a ‘human being’ in the state of maturity as a self-aware adult. According to Mill (1859: 9) there are two main ways in which power can be exercised over an individual and these are through the law, also referred to as tyranny of the magistrate, or through social tyranny which is the tendency of the societal customs to impose civil penalties, its own ideas, and practices as regulations of conduct on those who deviate from them. Mill’s (1859) holds a strong individualistic perspective and asserts that the society should maximize on individual liberty. In this case, Mill’s perspective is that the law should not be applied to dictate actions of people in their private lives. Legal penalties, physical force, or the moral coercion of the opinion of the public should not be used in a way of control and compulsion to govern the dealings of the individual with the society, unless in preventing harm to others. In the duty of preventing harm to others, the England and Wales have established criminal law for the purpose. According to Posner (2003: 197) harm must be tangible, contemporary material whether physical, financial, or emotional, and should be focused and direct, rather than spiritual or moral. However, the definition of the term criminal has always varied from society to society and from time to time. Crime is mostly described as a breach of laws for which the governing authority through the legal agency system can ultimately dictate a sentence. In England and Wales whether a given act or commission makes up a crime is not dependant on the nature of that act or omission. Instead, it depends on the nature of the legal effects that may follow it. An act or omission can be termed as a crime if it is capable of being followed by criminal proceedings (Posner 2003: 98). Criminal law is justified in England and Wales on the basis of deterrence, retributivism, rehabilitation, and incapacitation (Norrie 1993: 23-67). In the theory of retributivism, punishment is inflicted on the offender on the basis that it is deserved, or fit by the crime that the person has committed. Although the penalty should not be excessive, it should be what is needed on the level of the seriousness of the crime. Not only is it the duty of the offender to make amends for wrongs he did, but it is also the duty of the state to punish such offense, at the expense to the victim who is the only one who felt the magnitude of the harm. The redistributive theory of punishment is used because it is believed that it is the state that is rightly capable of inflicting the correct proportion of penalty, as a reflection of the seriousness of the offense, because the victim might still be grieving and might inflict excessive harm in revenge. Some 18th century philosophers like Immanuel Kant and Georg Hegel held the vies that it is the duty of the offender, as a possessor of free-will to make amends for the crime as a moral responsibility (Norrie 1993: 67). The state also takes it upon itself the duty to effectively reduce crime by monitoring the health of the individuals through rehabilitation and incapacitation. In looking at the trend, the object of this form of punishment is not to deter the offender, but to attempt to change his outlook on life so that he or she may not commit the offence again. Thus, psychotherapeutic interventions are incorporated to the sentence while the offender is held in a rehabilitation facility (Norrie 1993: 72). The criminal law of the England and Wales in the first decade of the 21st century is viewed as one that proscribes people and the corporate from intentional or reckless conduct that is harmful or socially undesirable (Raz 2009: 233). However, some observers believe that much of such behaviour is not yet criminalized. These include intrusion of privacy, abuse of suspect’s rights by police, and the wasteful use of the earth’s natural resources. On the other hand, most of what has been criminalized should not be crime in the first place. These include smoking cannabis, and using certain substances (Raz 2009: 228). In addition to that, the England and Wales law has criminalized many types of behaviour where the doer has acted out of negligence or even in the circumstance of some extremely strict liability offences where every care had been taken to avoid the harm. The criminal law of England and Wales contains so many public order crimes in which an individual is accused of activities that he or she made a personal choice to engage in, simply because the society disapproves (Norrie 1993: 74). Ideally, it is appropriate if the society dealt with the so called unpopular behaviour without involving criminal and other legal procedures. Nevertheless, the principle of harm should be applied to decide on the activities that can be permitted or prohibited by the law. For example, it is legitimate to have restriction on slander because it is an activity that can cause emotional harm to people. On the other hand, it is illegitimate to restrict the act of giving offense because this is an expression of response or reaction to an unpleasant occurrence. In business, there should be a legal restriction for a person who blows up a competitor’s plant because this is malicious harm to another. On the other hand, the legal restriction would be illegitimate if a person is advised by law from competing by lowering his prices, or improving the quality if his product or service. Whereas, law should be used to stop someone from harming another or others, it is an intrusion of someone’s privacy to use law to stop him from harming himself. Whereas an act of rape should be presided over by the Criminal Law, it is an illegitimate to use criminal law to restrict consensual sexual activity among people. A good example in this case is the use of law to determine whether homosexuality should be prohibited or restricted [Dudgeon v. United Kingdom 1981]. This seems to be too much interference into the private lives of individuals who are able to make autonomous decisions. Most acts that are usually referred to as sexually based crimes such as prostitution, and pornography, and also offenses involving substance abuse, may or may not involve public disorder elements or cause harm to the public as compared to potential harms like driving while under intoxicated. Unlike morality, law is created by a people, and even so, unlike morality, may have aims, normally of its individual or collective makers (Raz 2009: 146). Some critics argue that by nature, law must have certain idiosyncratic moral objectives and if it lacks these objectives then it is not law. Law must be just, or aim to serve the common good, or aim to approve coercion, or, simply aim to be in one way or another, morally cementing and morally rewarding (Mill 1865: 10). Despite the tendency of law to borrow from morality, and morality to be portrayed through law, problems may arise theoretically and practically from the use of one to enforce the other. As much as some people hold the views that the law should have moral aims and be morally successful, the problem is that some intentional law-makers lack moral aims and are entirely cynical (Baker 2011: 114; Raz 2009: 37). Such law-makers use the law-making process for pure material gain, retaliation, and power consolidation. Still, one may augment moral objectives to law made by such law-makers if the law was intentionally developed or consented by succeeding officials with moral aims. Later magistrates may interpret a law as having a moral goal, and hence endow it with one yet it lacked the goal at inception. Nevertheless, the entire agency of legal systems may be run by cartels of self-rewarding officials for whom the system is basically a perfect extortion scheme or a big joke. In this case, there are no moral aims in law, yet all legal officials must at least be pretentious of possessing moral aims when they conduct duty in their official capacities (Raz 2009: 37). In the book the Right not to be Criminalized Baker (2011) reviews proposals and arguments for necessitating criminalization with a focus on the legal confinement of criminal law. Baker (2011) observes that the moral benchmark for limiting unjust criminalization can, and has already been integrated in constitutional human rights and therefore provides a legal right not to be arbitrary criminalized. This is implemented through constitutional rights that work to protect specific freedoms such as the freedom of religion, right to privacy, and freedom of speech among others. According to Baker (2011) the right not to be criminalized has confirmed to be an effective justice constraint especially in the U.S. Although this general right not to be criminalized has not been fully embraced in both the U.S and Europe, it does exist (Baker 2011). As much as the state intends criminalization to be pre-emptive, and harm-reducing through reducing individual liberty and hence minimizing harm to others, there is a hidden factor of crime. Most crimes take place in the private or conducted with some degree of secrecy and it therefore difficult to establish the true intention of the crime (Shavell 2002:230). Arrest statistics are almost unreliable indicators of crime prevalence and often rely of political pressure as opposed to reflecting the true occurrence of the criminal activity. Criminal law should not be applied to detect what people do in their private lives. Some rules of conduct are usually imposed by law on many things which are not even for subjects for the operation of the law. Hence, the mere the likes and dislikes of the society or just the powerful portion of it are the main basis through which rules are laid down for the general observance of the society, under the law penalties and opinion. Another reason is that there is no recognized principle by which the propriety or impropriety of the authority interference has been customarily tested (Mill 1865: 11). People simply decide on what to put down and what not to, according to their personal preferences. However, because of the lack of rule of principle, it is possible that one side could just be as wrong as the other; hence, this shows that the interference of authority’s legal agency is with equally measure unrightfully invoked, or unrightfully condemned. Arguments for and against criminalization are well debated by various societal groups including philosophers, religion mens, and commentators. For example, debates about abortion focus mostly on religion and legal law. The group that favours decriminalization form their argument on the basis that the government should only be concerned with matters that affect the common good, rather than seek to control morality at individual level (Raz 2009: 262). Moreover, to criminalize acts that harm no other or society is a violation to individual freedom and the natural rights of the individual. On the other hand, the arguments against decriminalization are based on the proposition that the morality of individuals affects the good of the society in a collective way, hence without enforcement, the society may be damaged and lead to perversion (Shavell 2002:227). Such proponents believe that law forms morality and builds the character of the nation. Thus, if laws are not enforced, it is not the fault of the law. These commentators believe that if people were aware of the likelihood of being arrested, then they would modify behaviour. According to Maguire and Radosh (1999: 146-7) public order crimes that result to most controversy are directly linked to the current society’s perception of morality. Therefore, to insist that the forms of behaviours represented by such criminalized acts should retained or decriminalized is simply being oblivious on the range of arguments that can be gathered on both sides. However, the most basic question that remains is whether the government has the right to enforce laws that prohibit behaviours that can be termed as personal. The various perspectives presented bring s out a dilemma of whether law should be based on religion, morality, culture, politically or historical perspectives. It is clear that the support of one group over the other to promote morality in the society will be acting in the interest of one small group over the rest of the society. For example, if people decide that law should be based on religion, it will be minimizing the individual liberties of people who do not have religious beliefs, and even those that believe but have the autonomy to act on their own. Thus, any perspective chosen over the others will restrict the individual liberties to some extent. In my opinion, the law should be based on the current experiences on acts that have been observed to cause harm to the majority. The legal agency system in England and Wales should be revised to include only activities and behaviour of an individual that can cause harm to the rest of the society. On the other hand, ‘crimes’ that only result to self-harm should be left at the predisposition of the individual and his affiliations to philosophy and religion. In conclusion, it is seen from the analysis, it is seen that using Criminal Law to decide the moral conduct of individuals is like employing the thoughts of individual persons, who are also operating independently to satisfy their personal interests. Hence, there should be a limit through which the law should be used to guide the social behaviour of individuals in the society. The law should not be applied to guide some activities that people should do in their private lives such as consensual sex, ingenious business competence, and self-harm as this will be hostile interferences with the individual’s liberty. Even if the interferences are well-intentioned, they still trespass on the person’s liberty and compromise his attribute as a sovereign individual. List of References: Baker, D. 2011. The right not to be criminalized: Demarcating Criminal Law’s Authority, London: Ashgate Publishing. Dudgeon v. United Kingdom- 7525/76 [1981] ECHR 5 (22 October 1981). Maguire, B. and Radosh, P. 1999. Introduction to criminology, California: Wadsworth Mill, J. S. 1865. On Liberty. Oxford: Longmans, Green and Co. [Digital]. Norrie, A. 1993. Crime, Reason and History: A Critical Introduction to Criminal Law. London: Weidenfeld and Nicholson. Posner, R. 2003. "On Liberty: A Revaluation", in On Liberty: Rethinking the Western Tradition, ed. David Bromwich, New Haven: Yale University Press. Raz, J. 2009. The authority of law: Essays on law and morality. Oxford: Oxford University Press Shavell, S. 2002. ‘Law versus morality as regulators of conduct’, American Law and Economics Review, vol. 4, no. 2, pp. 227-257 Read More