Liberty And Law
March 8, 2016Posted by on
To an extent which is not generally realised, current controversy on the whole question of the relationship between legislation and morality is still dominated by the thinking of John Stuart Mill a nineteenth century liberal intellectual. T. E. Utley – What Laws May Cure
Since liberty was a good to be preserved, it followed that self-regarding actions were wholly outside the proper sphere of the State. A man’s liberty could only reasonably be curtailed in order to protect the liberty of others. It could never be right to coerce him for his own good. Could it really be assumed utterly wrong in all circumstances to restrain a man’s actions for the sake of safe-guarding his own interests?
It is common to find individuals voluntarily limiting their own freedom, submitting to some kind of external authority which, on the whole, they believe will promote their own happiness more than it would be promoted by the instant gratification of each of their inclinations. It is scarcely possible to conceive of any act so private that it produces no impact on others. If the impact is sufficiently damaging, there will be a case for State intervention. Many have started with Mill’s principles and found that, without ever contradicting them, it is possible to justify vast public intrusions into private life.
There were large areas of life which, though they seemed quite unsuitable for legislative interference, could not tolerably be abandoned to the competition of private whims and interests. What the State could not suitably do in such cases might be done by the pressure of public opinion. Clearly, much useful social behaviour arises neither from spontaneous devotion to society nor from fear of government, but rather from fear of social disapproval. This did not really help much with the problem of liberty. The psychological pressures exerted by neighbours could be just as tyrannical and far less predictable than those exerted by Governments acting through known laws, interpreted by impartial courts.
In considering legislation on an issue of private morals, the State should ask precisely the same kind of question and make the same kind of calculation as in legislating about any other subject. The first consideration was whether the end which the new law promised to promote was in itself a good or bad end. The second consideration was whether, assuming it to be good, it was so good as to counteract the inevitable disadvantage of making a new law at all — restricting personal freedoms by extending state coercion.