Devlin, Dworkin And Mill Essay, Research Paper

In this essay, I will discuss the beliefs of J.S. Mill, Patrick Devlin and Ronald Dworkin. These three men hold different, yet similar positions on freedom of speech, privacy and society. First, I will illustrate how Dworkin s idea of a free society includes more details than Devlin s. Also, how Dworkin s moral reasoning is an important aspect of freedom. Next, I will explain Mill s harm principle in relation to Devlin and Dworkin. I will also illustrate that Mill s principles relate to censorship and drug laws. Finally, I will relate Mill s principle to Devlin s and present my rationale for Mill believing in principles that would prove to be sufficient for Devlin s free society.

Ronald Dworkin explains how Devlin s criterion for a free society is lacking rational standards for restrictions on freedom. These are the ground rules of moral reasoning in Dworkin s opinion and are imperative to a free society. For example, on page 35, regarding homosexuality Devlin states, We should ask ourselves in the first instance whether, looking at it calmly and dispassionately, we regard it as a vice so abominable that its mere presence is an offense. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it.

Dworkin believes that if a large portion of society deems something wrong, then this action does not represent society and should be banned. Dworkin does not concern himself with the location of the occurrence of the homosexual acts. In his opinion, if society agrees, all homosexual acts should be prohibited. Devlin, on the other side of the spectrum, feels that homosexual acts practiced in the privacy of the home should not be illegal. Devlin s position illustrates the need for public morality. However, public morality cannot infringe on a person s right to privacy. Also, Devlin supports the presumption of individual freedom. This means that individual freedom never has to be justified.

Dworkin examines the discriminatory concept of a moral position: The reason need not be a principle or theory at all. It must only point out some aspect or feature of homosexuality which moves me to regard it as immoral: the fact that the Bible forbids homosexuality, for example, or that one who practices it becomes unfit for marriage and parenthood (p.40). Dworkin believes that the enforcement of morality is necessary for society. For instance, government has the right to add and infer institution to maintain society.

Devlin failed to recognize the possibility of irrational judgments of the law. Dworkin believes that one must give reasons why he or she feels a judgment is justifiable, as some reasons are not justifiable because they violate society s norm, such as prejudice. He also states that government cannot treat people unfairly, or differently due to race or gender. According to Dworkin, debate will stop when 1) society reaches a consensus; and 2) one or more parties see the debate as axiomatic or self-evident.

Dworkin stated that moral judgments are the basis of law. However, this does not allow for prejudice, emotional reactions, rationalization, or parroting. The preceding reasons violate moral reasoning and therefore are not valid to disallow an action. Devlin, on the other hand, believes that humans require consensus on morality. If homosexual acts violate public morality and consequently, homosexual acts should be prohibited. Devlin s rationale disallows an anthropological basis for law. This is because it is a necessary standard for law to enforce morality.

Devlin believes in rules for any given society, although he says that government should implement these rules. Dworkin feels that members of the society should be able to create these rules, as we are living in a democratic society. Devlin s criterion allows too much room for indecision and different interpretation for Dworkin s ideals.

According too J.S. Mill, the harm principle means, If anyone does an act hurtful to others, there is a prima facie case for punishing him by law or, where legal penalties are not safely applicable, by general disapprobation, (p. 70). By this idea, the harm principle protects people from the acts of others. People are given freedom to do as they please until one s freedoms are harmful to others. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury, (Mill p. 70). Mill also states on page 163, The individual is not accountable to society for his actions in so far as these concern the interests of no person but himself. When society s disapproval of actions are prejudicial to the interests of others, the individual is accountable and may be subjected either to social or to legal punishment if society is of the opinion that the one or the other is requisite for its protection.

Mill advocates freedom for individuals, but he does not want people to have so much freedom so that they violate the freedom of another person. Mill believes that happiness is desirable, and happiness is a conclusion. Everything that occurs in the middle is simply the means to an end. Utilitarianism is an adequate label for Mill s ideology. Mill believes that more often than not, each person is the best judge as to what is beneficial to him or herself and the amount of pleasure and happiness is a major aspect of utilitarianism.

According to Mill (p. 165), The preventive function of government, however, is far more liable to be abused, to the prejudice of liberty, than the punitory function; for there is hardly any part of the legitimate freedom of action of a human being which would not admit of being represented, and fairly, too, as increasing the facilities for some form or another of delinquency.

The only legitimate basis for restricting others is the cause of harm to another person. Having said this, we encounter the notion of a victimless crime. According to some people, homosexual activity and drug use are considered crimes. However, any action by two consenting adults in private should not be illegal, as these acts are protected due to the right to privacy. Mill believes in freedom of consumption regarding the issue of drugs. On page 68, Mill asserts this principle, The sole end for which mankind are warranted, individually or collectively, inn interfering with the liberty of action of any of their number is self-protection. 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. His own good, either physical or moral, is not a sufficient warrant.

Laws should not be created on the basis of self-victimization. Mill explains that social mores and beliefs often lead people to characterize certain behaviors as either good or bad. For example, regardless of people s opinions, if any adult chooses to smoke marijuana in the privacy of his or her home, this person should not be considered to be committing a crime. In this scenario, the marijuana will only affect the user. Since each person is the best judge for what is best for him or herself, then government should not be allowed to control people and prohibit action solely based upon harm to self.

Mill agrees that it is legitimate for the government to offer the public information about drugs and other social demons, however, he states that this provided information should be accurate and not highly embellished. Laws regarding victimless crimes are often derived from people s prejudices and opinions on what is good and bad for others.

Laws banning drug use is somewhat similar to censorship. Government officials have decided that marijuana use is unacceptable in our society, therefore it is illegal. These same official have decided that alcohol is acceptable for us. Mill and Thomas Jefferson agree on this premise: when censorship occurs, there are some people who are allowed to see and hear things that the rest of the public may not. An elite group of society has the power to decide what is virtuous and respectable and what is not. These people shape the media, laws and many other aspects of our society, regardless of how the majority feels. These actions are unfair to citizens because they do not know what the government is doing with censored material, the criticism of policy and political leaders, or any and all of the alternatives to the current situation. When people are not informed of the above-mentioned issues, public control is undermined and voting rights are negatively affected.

When people have very strong beliefs on a subject, they are convinced that their beliefs are true. It is often difficult to see the legitimacy of alternative views and easy to stifle positions of dissent when a majority shares the same view. Mill explains how censorship undermines social progress and will not allow the elimination of false beliefs. Mill s opinion on censoring dissent is this, However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false,, he ought to be moved by the consideration that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth, (p. 97.) If people cannot discuss, research and disagree with a statement, it will lose validity. People need to be able to understand ideas before they will accept them as the truth.

Mill s principle provides an adequate rational standard for restrictions on individual freedom according to Dworkin s criteria. Dworkin requires justification for judgments. Some reasons are not justifiable, such as prejudice. Mill explains how some laws are unjust. Crack and cocaine laws have large differences regarding the quantity of the drug and the length of the punishment. These laws have, over time, proven to be racist. Mill highlights these such instances and explains that they are unjust. Also, Dworkin does not allow moral and emotional rationales to be justified reasons for preventing an action. This is similar to Mill saying that drug consumption should be a free choice. Sexuality and contained drug use are victimless crimes and should not be considered evil merely because some people object to these actions. Each person is the best judge of what is best for him and society does not have the right to dictate one s actions. Mill s harm principle clearly states that no person can restrict freedom on the basis that a person s actions will harm him. Mill and Dworkin disagree on this stance: Mill believes that government s purpose is to promote happiness, while Dworkin believes that government must act to save society.

Devlin explains why we cannot put the state in charge of creating theoretical limits to legislate morality. This is a right to privacy matter and should be decided upon on a personal basis. Mill s principle of a free society mirrors Devlin: Restricting freedom creates damage to the principle when government prevents free choice. Both men thought that laws should be implemented to prevent an act that causes another act that will cause others harm. Devlin and Mill s interpretations of a free society are more similar because they deal with limiting governmental power to maintain democracy.

In conclusion, Devlin s free society does not meet the standards for Dworkin s moral reasoning as he fails to include justifications for laws and limitations. Mill s harm principle offers more freedom to the individual than Dworkin and even today s government in the United States are willing to offer. Mill shares some thought processes with both Dworkin and Devlin, however, Devlin s ideas are more encompassing than Dworkin s, so Mill s principles are more compatible with Devlin s.

337