Disgust as an Indicator for Threshold of Society for Intolerable Conduct - Coursework Example

Disgust as an indicator for threshold of Society for intolerable conduct. Law has evolved over centuries and ages, so as to incorporate rules governing the changing needs of the mankind. To look back at the progression of law from the times of ancient civilizations to the present age is a fascinating venture. Society itself has changed so much that technology unimaginable even a decade ago has become cornerstone of modern life. The mores have also changed with time. The intolerance that society has for groups or individuals such as homosexuals, inter-race couples has gradually worn off, and bar a mild preference for their absence, the Society at large has learnt to live with people with alternative preferences. But society can and does react violently to new ideas being tried out. What in a progressive society should mean an aberration would be a sacrilegious crime in another. But, apart from some extremely prejudiced individuals, society in a particular country usually has a collective sense of what is acceptable and otherwise. Extremely individualistic behaviour has been viewed with suspicion and even alarm by society at large, but mild delinquencies tend to be ignored, and sensible people, “the right-minded man” often ignore that which is not acceptable. The society then, literally turns its’ eye away from these aberrations, but only if they are within limits. We know of streakers running out into cricket grounds to kiss their stars, and even though the police carry them away, there is a ripple of amusement. The players are annoyed, the public is amused. But you can not imagine strollers in a garden to be amused at the sight of a naked couple engaged in sex in the open. And that is healthy for any society. Because a society apathetic to what may be moral or otherwise, but certainly is objectionable to the “right-minded man” will degenerate into dystopia. Disgust is the usual reaction to such wanton acts of indecency. No doubt the couple may be within their rights to have sex in a public place, but it is expected from them as members of the society to refrain from such exercise of their choice. And the absence of a self imposed code of conduct does and should cause public outrage. “Disgust if it is deeply felt,” asserts Lord Devlin, “and not manufactured- is a good indicator that bounds of tolerance are being reached --- no society can do without intolerance, indignation, and disgust, they are forces behind moral laws.” Is disgust then a reliable indicator of when a society has reached its threshold of intolerable conduct? Another question arising out of the same context is “Should the law be used to criminalize such conduct? This essay will deal basically four dimensions of the issue. (1) The liberty of the individual to act as per his desire. (2) The reaction of society to what it considers disgusting (3) The law in relation to the issue (4) Does the issue touch morality, duty etc. In a democratic country and in any open society, an individual has an inviolable right to act as per his desire and to some thinkers and philosophers this is the paramount consideration whether a society is tolerant or not. In other words, protection of personal liberty of the individual is the function of law. This has been re-iterated by the Wolfenden Report according to which the three fold function of criminal law is (i) To preserve public order and decency (ii) To protect citizens from what is offensive or injurious (iii) To provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable. Wolfenden Report 1 was the result of deliberations of Committee on Homosexual Offences and Prostitution, which sat from 1954 to 1957. The said report is a milestone in the legislation regarding homosexuality and gay rights in western countries. According to the said report, law exists for the protection of individual. The Wolfenden Report recommended, in part that prostitution should not be considered a crime, but soliciting on streets should be punished more severely than was the norm in those days. The report also legalised homosexual act between consenting adults in privacy. Furious debate was going on about the legitimacy of homosexuality, but the report urged that public statutes avoid the attempt to legislate morality and that they concern themselves only with sexual acts that offend public decency or disrupt order. 2 It is not, in our view, the function of law to intervene in the private lives of citizens, or to enforce any pattern of behaviour, further than is necessary to carry out the purposes we have outlined”.3 The report caused a heated debate in England. Lord Devlin, a leading judge challenged the report on principle that the very basis of the report i.e. its interpretation of the function of criminal law was flawed. He argued it is the duty of law to enforce morals, when the report had opined otherwise. To that end, he advocated a restriction on individual liberties to the extent that they do not generate disgust or similar strong feelings. Delvin asserts the reasonableness of the reaction of the public at large by citing the use in English law of the standard of reasonable the “man in the street--- in the Clapham Omnibus”. According to Devlin, a society comprising of such right minded men should be relied upon to give reasonable reaction to something which is offensive either by itself or by its being immoral. He claimed that the law legislates to preserve itself, that law makers enforce already existing ideas of right and wrong, and that therefore it is necessary that law secures the prevention of what is in itself immoral, though the individual be at liberty to do it. In support of his claim, he points to the example of murder. The death of one at the hands of another, defined a murder, is an offence because it is immoral, being against the principle of sanctity of human life. Hence even if the death is by consent of the victim, it is an offence. Euthanasia is still illegal, despite the decades long debate about it. He also cites monogamy as another example to argue that the issue of monogamy is of interest only to the individuals, but it is an offence because it is immoral according to Christian standards. But the liberal Committee, led by Wolfenden, and comprising of 14 men and 11 women drawn from cross sections of the English society found that the practice to shun homosexuals, and brand them as offenders was against the spirit of individual liberty, and that it is not justified for law to step in and act. “There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality”. 4 John Stuart Mill, in his On Liberty states that society can be a tyrant as bad as political oppressors to the individual, and that every individual is free as long as they do not cause harm to another. Mills view was justified. Further, as the prejudices about different aspects of the physical world which were cleared away by the sciences, the public morality should also be corrected using moral philosophy, which is not there to enforce prejudices but to end them. Humans are social animals, something which has its benefits and disadvantages as well. In order to live together the best way possible, humans had to conduct codes by which they can live together, namely laws. The main function of law is to achieve the welfare of citizens. Law ensures that no man should fear another. The law restricts freedoms of individuals as well, but this restriction is the price to be paid for safety. This restriction however must be reduced to its minimum limits. For, the tyranny of the majority was – and still is – held in dread, chiefly as operating through acts of public authorities. 5 Devlin argues that law function to restrict the freedoms of the individual based on one more criterion, he calls disgust to function as a means by which morality should be defined. He regards the disgust of the average person for some acts a way of determining what law should prohibit and in order to protect the morality of society. His view is that we should protect society from immorality and "vice". Delvin believes that something more important than the freedom of the individual is involved and that the civilization of society is more important than the amount of freedom each individual has lost. Some of Devlins critics argue that disgust is not a reliable emotion for making such judgments, Martha Nussbaum for example argues that while not all emotions should be thought to be irrational, some are reliable for ethical judgments while others are not, and she argues that disgust is not reliable. Nussbaum believes that each emotions evaluative cognition should be examined on its own. She believes that disgust is not reliable. It is her belief that disgust is a result of the fear of contamination that a person has which is borne out of a desire to be non-animal, in that what we see as disgusting we believe to be bestial. She argues this emotion as irrational since it is a feeling that is caused by shame of something natural, even indispensable in our lives. 6 The problem with Devlins argument is that it presupposes that some acts, namely those that are disgusting, are in themselves bad and should be prohibited for that very reason. But the law defined as the code by which humans agree to limit their freedom in order to live together with does not view morality as a goal, rather a means to achieve something. Devlin on the other hand treats morality as a goal as though prohibiting some acts is rewarding in itself, the use of the word "vice" indicates this prejudice that takes morality as a goal and some acts as good or bad in themselves. It is argued that emotions, including disgust are irrelevant to morality viewed as a means by which a greater goal can be achieved. The goal which every aspect of morality achieves should be compared to the compromise which it involves; the compromise is the part of human freedom it takes. For example prohibiting an act such as killing restricts the members of society, but the benefits of this restrictions, which is the safety of lives of each member in society, is far greater than the small restriction on the individual which is simply not to kill, while prohibiting an act such as homosexual acts has no benefits for society while restricting the freedom of some of its members from doing these acts. This weighing of the benefits and the compromises of each aspect of law should be what determines whether or not it is a rational one. The debate over the Wolfenden report was enlivened by the entry of H. L. A. Hart, an eminent jurist of the day, who supported the findings and suggestions of the report. He criticises Devlin on various grounds. He starts by prima facie objection to legal coercion for the reasons that it allows punishment, limits freedom and frustrates people’s desires by threat of punishment. Hart further argues that the reliance placed by Devlin on feelings is dangerous. He questions how we can distinguish between prejudice and moral judgment. There is much substance to the views and arguments both of Hart and Nussbaum, but the idea of disgust as a criterion to decide the society has reached threshold of its tolerance limits is attractive, both ideologically and emotionally. Firstly, the public at large must be allowed to decide what induces mild surprise and what excites their base passions such as disgust. Secondly, even apart from the morality of the act concerned, some acts are so offensive to the public weal that public re action to them is the best way to prevent further recurrences. The law as stands is not equipped to deal with more and more strange and bizarre expressions of individuality, and though the internet has taught us to be tolerant enough, there are still some things out in the mind of social miscreants which may cause offence to even the mildest of the man in the Clapham omnibus. Notes. 1. Committee on Homosexual Offences and Prostitution, 1957.Report of the Committee on Homosexual Offences and Prostitution. London. Her Majesty’s Stationery office 2. http://www.brittanica.com/EBchecked/topic/646566/wolfendenreport. Accessed on 3rd November 2009. 3. Report. Ibid. Para. 13 4. Report. Ibid. Para 62 5. John Stuart Mill. On Liberty.i 6. From Discussing Disgust. On the folly of gross-out public policy, An interview with Martha Nussbaum. Available online at http://reason.com/archives/2004/07/15/discussing-disgust Accessed on 3rd November 2009. Read More