Both points deserve some attention. I will start with the second point, because in this way the first point will stand out more clearly. Is the use of coercion, then, a „global and blind invasion of autonomy“? There is no doubt that this is sometimes the case. „Depriving a person of opportunities or the ability to use them is, as Raz says, a way to harm them.“ Again, „[a person`s] pursuit of projects and relationships that he or she has begun can cause frustration“ (Raz 1986, 413). The most common context for invoking the principle of harm is criminal law. Many criminal behaviours are committed under threat of imprisonment, and incarceration can cut off a very wide range of options; Or it can significantly reduce them through various forms of disruption or destruction: family life, deep personal relationships, employment opportunities, pursuit of valuable outdoor activities, political participation, etc. The most influential recent defense of the „harm principle“ – by a theorist with a reasonable explanation of morality – is that of Joseph Raz (Raz, 1986).  I will discuss in a moment the basis of the principle of damages proposed by Raz. But first, a word about the original basis of Mill`s principle. Mill said utility was the ultimate attraction in all ethical matters.
But given other things Mill says about it, it`s first amazing why he should think utility supports the harm principle. For he also enunciated the principle of utility, according to which „actions are proportionately just because they tend to promote happiness, bad because they tend to produce the opposite of happiness“ (Mill 1993, p. 7). The latter formulation seems to advise States to keep their options open in their legislation. „Do what you can to reverse unhappiness,“ seems to be the advice, „and do what you can to promote happiness.“ „Coercion to avoid harming others, if it reverses the misfortune; Coercion for other purposes, if that also serves the purpose. But, as we have just seen, coercion to prevent harmless misconduct is ruled out by Mill, whether or not such a measure is the best choice of the state to reverse the misfortune. It doesn`t matter if this harmless injustice makes everyone unhappy; It does not matter whether the coercion of those who maintain it would remove misery: the state must not exercise coercion and misery must remain. Did the confusion here produce Mill`s masterpiece? Even if the apparently very strong concession in (1) is made to the legal moralist, the question is far from over.
Indeed, limits of principle can be generated from the means proposed by the law to achieve its objectives. (2), not (1), leads Raz to support the principle of damage. At first glance, it seems strange that a supporter of the claim referred to in subsection (1) could also be a supporter of the harm principle. After all, isn`t the principle specifically intended to impose limits of principle on the law and to exclude justifications based on the goodness or value of options? How do we reconcile this with the assertion that there are no fundamental limits to the state`s pursuit of moral goals? According to Ronald Dworkin, the bad thing about Devlin`s thesis is that it misidentifies what is a moral argument. We don`t argue morally, he says, when we prejudge, when we parrot, when we rationalize, and when we simply emotionalize. You`ll surely occasionally hear an exchange with real moral content, some of which are robust if you follow Devlin`s advice and catch Clapham`s omnibus, but you`ll also be served so many prejudices, so many rationalizations and parrots, and so many simple emotions. Devlin gives us nothing to differentiate ourselves: for him, everything counts too. Not everyone, on the other hand, accepts Dworkin`s claim that emotional responses cannot be moral responses; but Devlin nevertheless took back an emotion – disgust – particularly prone to distortion (cf.
Nussbaum 2004). It is clear that Devlin did not focus at all on moral arguments in advocating for the „application of morality.“ Devlin`s narrative unacceptably implies that a corrupt and immoral society has as much right to perpetuate itself as a decent society, provided it is able to integrate society. He also works, as we have just seen, with an unsatisfactory understanding of what morality is. This leaves open the possibility of another explanation of legal moralism, which does not make these mistakes and regards morality as rational, but also adheres to Devlin`s assertion, quoted at the beginning of the article, that „there is no area of morality into which the law must never enter.“ His own narrative does not give a clear path, but his challenge to those who propose the principle of harm and a similar statute of limitations is to provide an adequate basis for isolating certain areas of state morality when passing its law. The specific version of legal moralism that Hart rejected was that of Lord Devlin. Lord Devlin, then a judge of the English High Court, responded to a government report recommending the legalisation of homosexual conduct between consenting adults in the private sphere. The report, known as the Wolfendon Report, concluded that `there must remain an area of private morality and immorality which, in short and roughly, does not fall within the scope of the law` (Wolfendon Report, 1957, paragraph 61). Devlin`s main point was to argue that this specific theoretical conclusion does not hold. Mill, of course, believed that harmless behavior was not a matter of law, whether it could be called immoral or not, and Hart`s intention in challenging Devlin was to reinforce a modified version of Mill`s view.
It has already been said that Devlin`s moralism is, in Hart`s words, the „artificial“ variety. He believed that the invisible links of common thought in a given society are not the same in different societies. Some societies, for example, abhor polygamy, and others find it a worthy form of social organization. In different ways, monogamy and polygamy may partly represent the invisible bonds of shared thought in different societies. For Devlin, it follows that in one society the law can be used to impose monogamy against polygamy, and in the other it can be used to impose polygamy against monogamy, if the latter threatens the former in both cases. In industrialized societies, Devlin tells us, it is generally true that monogamy is „embedded in the house in which we live and cannot be eliminated without bringing it down“ (Devlin, 1965, p. 10). But this is only an accidental truth, and if our homes were built differently, the content of the law to be applied could legitimately be the opposite of what it is. Morality is conventional for Devlin. Sex, drugs and adults: Living in the „land of the free“ does not mean that there are no rules to follow. ABC News answers the question: If no one is hurt, why is it illegal? „In order to protect individuals from violence and society from lawlessness, the police and the law have a necessary role. But if people engage in behaviors that primarily harm themselves, is it fair in a free society for government to intervene? „Paternalism“ comes from the Latin pater, which means to behave like a father or treat another person like a child.
(„Parentalism“ is a neutral anagram of „paternalism.“) In modern philosophy and jurisprudence, this means acting for the benefit of another person without their consent, as parents do for children. It is controversial because its purpose is benevolent and its means are convincing. Paternalists promote people`s interests (such as life, health or safety) to the detriment of their freedom. Paternalists assume that they can make smarter decisions than the people they act for. Sometimes this is based on assumptions about one`s own wisdom or other people`s foolishness and can be dismissed as presumptuous. But sometimes that`s not the case. It may be based on relatively good knowledge, as in the case of paternalism of young children or incapable adults. Sometimes the role of guardian is imposed on those who do not want to, as when we find ourselves as guardians and agents of an unconscious or severely retarded parent. Paternalism is a temptation in all areas of life where people have power over others: in parenting, education, therapy, and medicine. But perhaps nowhere is it as confrontational as in criminal law.
Whenever the state acts to protect people from themselves, it seeks their well-being; But by doing so through criminal law, he does so by force, often against his will.