Obeying The Law: Another Opinon

Obeying The Law: Another Opinon

Law

Student newspapers and periodicals

An article by Micheal Mello questioning the law and how the law should be followed.

Mello, Micheal A.

Mello, Michael A. "Obeying The Law: Another Opinion." Prometheus. Michael A. Mello Papers, 1957-2008, Special Collections, Simpson Library, University of Mary Washington

HIST 298, University of Mary Washington

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In the October 31 issue of PROMETHEUS, my good friend Lisa Langebach argued that our governmental philosophy should be governed by the “simple principle” advanced by John Stewart Mill in his essay On Liberty: “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.” Thus the famous “harm principle”, which Ms. Langenbach feels “provides a solid foundation for all action” and should be the basis of the American legal code. I happen to agree with her, but for the sake of discussion I would like now to present the opposing viewpoint, and in so doing I should thank Dr. Fullinwider of the Philospohy Department for showing me that there was a strong, rational conter-argument of Mill.

Mill’s “simple” principle is really not so simple at all. He writes that “if anyone does an act hurtful to others, there is a prima facia case for punishing him by law. Yet Mill never specifically defines “harm.” Does only physical harm count, or are embarrassment, frustration, and mental anguish also included within the harm principle; certainly they all constitute harm. Further, Mill never spedifies how much harm is necessary before legal punishment may ensure, what is the harm threshold, in other words? Mill’s failure to deal fully with these matters raises serious ambiguities about his tesis, especially since he offers many qualifications to his ‘simple” harm principle. First, he justifies state coercion aon matters of joint society interest; “there are many be compelled to perform, such as to give evidence in a court of justice and to bear his fair share in the common defense.”

Mill does not stop there; “a person may cause evil to other not only by his actions but by his inaction and in either case he is justly accountable to them for the injury.” Thus, a citizen may be punished for inaction as well as action, and both punishments are surely infringemints on freedom. We are “harmed,” but Mill justifies it. This point about omissions is crucial for it means that harm is not necessary a prerequisite for punishment. I now don’t have to actively harm someone in order to be punished. Further, hamr alone is note ven a suffiecent condition for punishment: if I invent a machine that makes it possible for me to put you out of business, I have certainly hurt you. Yet Mill holds that the State may not punish me for this harm. Now the harm must be of a certain nature before punishment may be justifiend: hamr alone is no longer the yardstick. These qualifications cut the heart out of the harm principle and render it useless as a standard for gouging the validity of laws or other social policy.

Mill assumes that there exists isolated vacuums of private conduct over which the “individual in soverign” and the state may not interfere. But, as Joel Fienbeg wrote in Social Philosophy, “there are a thousand subtle and indirect ways in which every individual act, no matter how private and solitary, is the cause: if he did not smoke marijuana his mother would not have been harmed. Similary my mere knowledge of the fact that homosexual activity is taking place in the dorm room next to me may cause me tremendous mental and emotional harm – yet the gays next door may not be pusish for this harm: the fatal heart attack that affects others.” A mother may be so upset over her son’s private marijuana yse that she has a nervous breakdown. The mother has been harmed, and it seems that her son results from my consternation is only an “inconvenience which society must bear for the greater good of human freedom, unless the individual violats a specific duty to the public.” Thus, the “self-regarding/ other-regarding” distincition. But how can Mill just blithfull exempt this kind of harm from punishment without specifying precisely what the indivudals “duties” to his society are? Harm alone is not an adequate measure.

Mill attempted to deal with this problem by specifying two different types of social response to “problem” citizens. While only direct harm may be punished by the criminal law, indirecdt harm (such as my gay neighbor) may be punished by a sort of “social law” we may avoid the offender, withhold gratuitus benefits from his and so forth. In dealing with such an offender, “we may express our distaste and we may stand aloof from a person as well as a thing which displeases us, but we shall not therefore feel called on to make his life merable.” But is this really sufficient? Mill assumes that “the greater good of human freedom” will always outweigh the “inconvenience” yet this may not be the case. Take, for example, a private billboard palced on private property, adjoining a public highway. Suppose the billboard contained a twelve foot caricature of former President Nixon performing sodomy with a Palimeno pony under the caption “Nixon Sucks.” I wonder if this is an “inconvenience” that the public would afford for the “greather good of human freedom.” Mill is a utilitarian, which means that he does not appeal to abstract principle to support his thesis. But Martin Golding has argued that “the utilitarian argument cuts both ways: why shouldn’t the individual’s greedom be limited if it promotes the general happiness and perhaps his own happiness in the end?” Mill also assumes that freedom is necessary for self-fulfillment, a presupposition which he never develops. If freedom is so valuable, then why do so many people surrender theirs to dictators so easily? For these reasons, the harm principle alone cannot be the basis of social policy. It is too nebulous and it is this very quality which makes it so seductive. But, as Socrates once said, “The beginning of wisdom is the definition of terms.”

Newspaper

Gallagher, Caleb S.

Williams, Megan