Wednesday, January 24, 2007

Law and the Harm Principle

One of the biggest issues straddling the areas of ethics, law and politics is how far ethics should be implemented as law. Of course not all law attempts to implement pre-existing moral duties. Often the law itself can help inform people of considerations which will alter their moral duties (as with some health and safety laws) and at other times it has a crucial regulatory function, imposing a uniform standard which is no better than another for the reason that there needs to be some standard (the classic example is a law requiring all to drive on one side of the road). However the bulk of law is meant to enforce pre-existing morality, so it is crucial to know how far this should go - in other words, what are the moral limits of the law.

For liberals, the traditional standard is the harm principle. The Wolfenden Report which eventually led to the legalisation of homosexuality in the UK suggested a private sphere of morality into which the state should not intrude. But modern liberals see this in a different light. Homosexuality should be legal not so much because it is private, but because it is not immoral. The harm principle decides what is in fact immoral, not which immoralities should be criminal. Nevertheless there clearly are some immoralities we believe should remain legal, like adultery. The principle behind this needs further exploration.

However at the same time, the harm principle as applied to ethics does lead to difficult questions. The distinction between acts only harming oneself and acts harming others is tenuous. Although drug use, masturbation, contraception and homosexuality are examples of private acts with no direct impact on those who do not consent, all if discovered can cause offense and distress to others, particularly loved ones who disapprove. Even those with no connection to the individuals in question can feel anger and outraged at the presense of the phenomenon in their society. Liberals would have no problem that such moral outrage should not count as actionable harm - that such mere offence should be discounted from the harm principle. The problem is justifying this.

The best definition of harm appears to be detriment of any kind, and this would seem clearly to include offense, outrage and distress. An immediate reaction may be to draw a line between physical harms and mental harms. However this is a worrying distinction. On the mental side of the line would also be fear due to intimidation as well as any number of mental illnesses. It would be unjust to say that causing such ailments does not violate the harm principle. The distinction is also unjustified. Mental harms can cause as much, if not more, misery than physical and are by no means necessarily easier to 'get over' - such an idea is discredited by modern understanding. So how do we explain why offense should not be treated as harm?

I think that the answers to this problem and the problem of translating morality into legisaltion are intertwined, and must be understood together. The crucial answer to the offense problem is to realise that offense and related ailments are indeed harms to be factored into our moral considerations. For this reason, it can be morally wrong to swear in front of those who it will offend, or insult someone for no reason. Crucially however, harms must always be balanced against the benefits of action. If we reasonably minimise the chances of people getting offended by our private actions and the benefits justify what small risk there is left, it can still be morally permissible to do those acts. While homosexuality may disgust some and offend others, engaging in homosexual activity can still be justified by the following factors among others: The negative effects of repressing orientation in terms of emotional health and fulfilment, the happiness brought to oneself and ones partner(s) by engaging in it and the benefit to society of encouraging more openness and acceptance. Offence in cases like this is taken into account but outweighed by the positives. It is further submitted that our right to self-determination is also a good which should be weighed against restrictions. As long as mere offence is considered a low-level factor to be taken into account (as opposed to more weighty concerns like physical harms and more profound mental harms) there is not a problem.

In the case of criticising the beliefs of others, this calculation must include considerations of the public good of free debate. It may be wrong to simply mock and ridicule another's beliefs just to upset them. However reasonable criticism is vital to our society, and the good of allowing ideas to be questioned can easily outweigh temporary offence at the criticism. Whether criticism is morally justified must very much be considered on a case-by-case basis.

This sounds dangerous when it comes to the application of law, however. If we were to leave it to judges to determine what is and what is not reasonable criticism, free speech would be left to the personal opinions of individuals with their own agenda and their own criteria. It is a question much better left to the individual conscience to determine. This is because the nature of law requires that we filter morality in certain ways before imposing it on the public. This is the crucial insight which should make us read the Wolfenden Report in a different light. It is not that law should be different from morality due to some problem with coercing others to behave morally (the harm principle deals with this at the stage of determining what is moral), nor due to some distinction between private and public morality. Rather, the very nature of law requires that morality be filtered in certain ways before application. A couple of the key principles of that filtering will now be set out.

Effectiveness - Where law attempts to uphold morality, it is useless if it has no effect and counter-productive where it actually encourages the wrong or wrongs it seeks to prevent. Laws making thought crimes fail not just because such laws may be wrongheaded in their subject matter, but also because they are impossible to police and so encourage disrespect for the law as a whole. Moreover a society which criminalises drugs may find that this drives them underground, causing vast harm in other ways. Effectiveness should be considered in terms of the legal order as a whole: Where a law is effective against one wrong but actually increases another, it must be considered whether the tradeoff is worthwhile. Where it isn't the law should be removed, even though the act in question might still be wrong.

Certainty - Certainty is crucial to any system attempting to guide behaviour. People must be able to stay clear of prohibited actions. At the same time liberty must not be restricted more than necessary. The result is a need for clear, somewhat simplistic guidelines. Unfortunately, morality does not provide us with such guidelines. Ethics tirelessly requires us to assess the individual situation and weigh up competing factors, which gives it an unavoidably personal element. Giving such a decision to the courts to decide increases the uncertainty of those who are considering how to act. Different judges may weigh factors differently and come to different moral decisions on the same set of facts. Legal certainty therefore dictates that morality be simplified down to a reasonable number of bare rules. The question of whether killing is wrong or not in a certain situation can be difficult, but the law makes it simpler - killing a person is always wrong, with a few clear exceptions. The reason why we might all agree that stealing food to survive might be morally permissible but should remain illegal is that otherwise the court would have to examine the socio-economic circumstances leading to the theft, whether there was any other way to get food, whether the person from whom it was stolen had more need of it etc. Courts are simply not best placed to make such assessments - they must remain for the individual conscience to determine. What the courts and the legislature do is balance fairness with simplicity to come up with rules to be applied depite the fact that they may lead to unfortunate consequences in individual cases.

So these principles of effectiveness and certainty must be used to determine in what way and to what extent the law should enforce morality. Now, as mentioned above, free speech and debate is crucial for a healthy democratic society to function. The principle of effectiveness therefore indicates that there should be extremely strong reasons wherever they are to be curtailed. Certainly when it comes to useful debate, offence and outrage are not sufficiently strong reasons, especially as they constitute an ordinary and expected part of reasonable discourse. However then the principle of certainty comes in. It cannot be for judges to simply decide for themselves whether a certain type of speech serves a sufficiently useful role to justify offence. Therefore, offence has to be removed from consideration as a harm from the law's point of view. Even when from an individual point of view, it would be wrong to offend someone, a judge must not be allowed to determine this because to do so would allow free speech to be subject to the will of the court. Much better is the judgement of the people as a whole who can accept or reject any ideas contained within the discourse.

People can have horrendous views. Sometimes, hearing them, it is difficult to imagine how they can morally justify to themselves promulgating such views. However what I submit is that we must never think that it is for the courts to put an end to such views. They must be judged by public opinion, a public open to hearing and determining any issue.