Luther And Dworkin Essay

John Stuart Mill, Patrick Devlin, H.L.A Hart, and Ronald Dworkin each provide varying views on what constitutes morality and what the role of society/the law should be in protecting morality. The discussion of these four philosophers provides insight into this debate, as each philosopher provides a different perspective. For example, Mill being a utilitarian gives him a unique view. I will discuss Mill, Devlin, Hart, and Dworkin and compare their views in order to gain a better understanding of what constitutes morality and how far should society and the law be permitted to interact with morality.

Mill’s harm principle states that the law can only coerce its citizens to act differently, if the action in question is harming others. If an individual's

action does not harm others, the law cannot intervene. For example, if William does drugs in his apartment, by himself there is no evidence that he is harming anyone else, therefore the law cannot use its coercive power to persuade William to abstain from taking the drugs. Mill argues for this by appealing to an epistemological argument: an individual has epistemological access to themselves that the law does not, thus individuals are the best judge for what is good for them. Society does not have the knowledge of an individual’s tastes and pursuits, without this understanding a society cannot intervene and tell individuals what is best for them. The law does not have an epistemological access to one’s thoughts and desires, only that individual possess that, thus they are the best judge of what is right for him/her. He also contends that using coercion on actions that only harm the individual has long term adverse effects. expand.
Although Mill is a utilitarian it is important to note that even if one were to reject the principle of utility, which is that an action is right if it maximizes happiness (as pleasure is qualitative) and an action is wrong if it produces pain, if you value political liberty as a primary good then you will accept the harm principle. The reason being is that the harm principle does not infringe upon people's political liberty, because it states legal coercion is only justifiable if someone’s action is harming others. Locke, who is not a utilitarian, would appeal to the harm principle because it is the best way to ensure an individual’s liberty is protected. It is important to note that one’s behavior causes harm when it violates a duty one has to others. For example, someone drunk driving is harmful to others because it puts other people's lives in danger. According to the harm principle it is justifiable for the government to intervene in this instance because others lives are in danger and only in these types of instances. Thus, the harm principle protects one’s political liberty by preventing it from being violated.
Devlin’s disintegration thesis contrasts Mill’s harm principle in that the disintegration thesis contends that a society has a right to enforce compliance with its moral code. As a society is a group of people with shared ideas about politics and morality. Devlin asserts that immorality threatens a society’s beliefs on morality in the same way that treason threatens its thoughts on politics. Treason and immorality are analogous for this reason. It is justified to prevent and punish treason because treason threatens political ideas in the same way that deviant actions threaten morality, therefore it is justified to prevent immorality. The thesis asserts that the enforcement of morality is justified on the grounds that the failure to do so will cause the society to disintegrate. This contrasts the harm principle because Devlin’s thesis warrants a society to enforce morality, while the harm principle restricts the enforcement of morality only when dealing with actions that infringe upon the rights/safety of others. The disintegration thesis presents society with the right to go after immorality because if it did not that society would disintegrate.
Hart’s critique of the disintegration thesis is that it essentially is the conservative thesis, which states that if society does not enforce morality then that society will lose its distinction, namely it will not be the same.

Hart states that there is no empirical evidence to support that society would disintegrate and become a Hobbesian state of nature, if morality was not enforced by the law. He asserts that when you press supporters of the disintegration thesis for evidence that society would revert back to a Hobbesian state, their response is much more like the conservative thesis: that the society will not look the same. For example, if homosexuality were allowed in Kansas, then that society will lose its distinction because it would not really look like Kansas anymore it would be more like San Francisco. There is no evidence that Kansas would disintegrate and its society would regress to a Hobbesian state. This illustrates Hart’s point that there is no empirical evidence to support the disintegration thesis, rather supporters of this thesis give reasons that support the conservative thesis, not empirical evidence to support that society would disintegrate without the enforcement of morality. He contends that it is not the disintegration thesis if society just loses its distinction, thus justifying his claim that there is no empirical evidence for the disintegration

thesis.
The difference between the disintegration thesis and the conservative thesis, as mentioned earlier, is that the disintegration thesis maintains that without the enforcement of morality society will disintegrate. While, the conservative thesis does not contend that society will disintegrate without the enforcement of morality, only that society will lose its distinction and not look the same. Hart describes the disintegration thesis as: “the case for the enforcement of morality on this view is that its maintenance is necessary to prevent the disintegration of society” (1). This contrasts the conservative thesis as it does not state that society would disintegrate only that it would lose its distinction.
Devlin’s view on what counts as morality rests on what they reasonable man believes to be immoral, largely based on their feeling. Dworkin discusses this view and states that “if it happens however, that the vast bulk of the community is agreed upon an answer, even though a small minority of educated men may dissent, the legislator has a duty to act on the consensus” (5). The two reasons being that “the decision must rest on some article of moral faith” and that in a democracy issues like these would have to be settled with a democratic consensus. The second reason is that “the community must take the moral responsibility, and it must therefore act on its own light-that is on the moral faith of its members” (5). These reasons support Devlin’s view that moral judgements should be based upon what a reasonable person would accept and that the court should follow the moral consensus of the majority, rather than a few elitist citizens.
Dworkin rejects Devlin’s view of what counts as morality. Devlin believes that what the counts for morality is the judgment of a reasonable person, not necessarily the rational person. The judgment that counts for morality can be a matter of feeling. For Devlin intolerance, indignation, and disgust are sufficient for morality. Dworkin rejects this premise and states that disgust is not the wrong making feature, rather the wrong making feature is what makes the person disgusted in the first place. According to Dworkin, judgments can be made in a discriminatory and non discriminatory sense. With the discriminatory sense, one is discriminating between the good and the bad and must provide reasons for his/her judgment. Not all reasons count as justification, such as prejudices or religion. However in a non discriminatory sense one is not expected to provide reasons or be rational, and he/she can base their judgments on feeling. This looks like the sort of thing Devlin is appealing to, which Dworkin rejects. Dworkin states that one should be able to give reasons for their judgement to ensure they are not based on prejudices and are justifiable, thus when discussing morality a society should appeal to a discriminatory sense.