Enforcing a Shared Morality

Abstract

If we accept Mill's self-protection principle as the basis of criminal legislation, then we get the thesis that the law may only interfere with the conduct of individuals where there is to other individuals. Various types of objections have been raised against this thesis. First, it is argued that the concept of harm is ambiguous. If harm is interpreted in some suitably wide sense, it would justify legal intervention with all sorts of conduct, and this would be quite contrary to the spirit of Mill's essay On Liberty. But if, on the other hand, we use a narrow notion of harm such that it is synonymous with physical injury, then Mill's principle would not justify intervention with conduct which even Millian liberals would wish to exclude, such as public sexual intercourse. Again, it has been argued that the concept of is dependent on the prevailing moral standards of a society, so that the principle is not capable of picking out a definite area of human conduct which must at all times remain free from legal intervention. A second set of objections maintains that legal intervention is justified not merely to prevent to other individuals but also to prevent the agent from harming himself. This, of course, is the doctrine of paternalism which Mill detested.' The third type of objection is the only one which I shall discuss in this paper. It centers around Mill's individualism. Mill, it is claimed, fails to recognize that there are certain important social structures and institutions in any society which the law should uphold. So, quite apart from protecting individuals from harm, the law has also the function of enforcing the generally shared morality associated with these structures and institutions. Recently two notable attempts have been made to support this point of view, one by Devlin in The Enforcement of Morals and the other by Mitchell in Law, Morality and Re-