A Law Justifiable by Legal Moralism
The third point is of no help either. It would undoubtedly be tempting to say to our imaginary legislator, “You might call abortion murder and you might think that you have based your point of view on good reasons. But look around; Virtually everyone thinks you`re wrong. So you just have to limit your views to others who share your views and not impose them on everyone. The legislator would have a simple answer, namely that the argument represents little more than a count of heads. He seems to return to Lord Devlin`s territory and equate legal morality with moral beliefs and instinctive reactions. This, as we have seen, will not be enough: if most people considered slavery permissible, it would not lead to it.  None of these arguments contribute to our imaginary legislator acting illegitimately. George`s argument is quite public, it can be related to the law rather than the good; As an argument against murder, it does not violate any restrictions on neutrality. And it is not an objection to say that the point of view is in the minority. This is only the fourth argument that demonstrates the illegitimacy of the action of the imaginary legislator. For what it is worth, I believe that George`s arguments are not convincing and could simply prove to be false on the basis of substantive counter-arguments to his own. But of course, even if it`s true, this is exactly the kind of argument rawls and Nagel want to exclude from the debate, so they couldn`t help them draw the conclusion of the illegitimacy under their premises they`re trying to establish.
The best arguments against George`s position would be rejected amicably. | of coercion Constitutionalism| Criminal law, theories of | Rationale, Policy: | public legal obligation and | of authority Liberalism| Mill, John Stuart | Paternalism| Perfectionism, in the moral and political philosophy | Pornography: and | | censorship Even if the apparently very strong concession in (1) is made to legal moralists, the issue is far from over. Because fundamental limits can be generated from the means that the law proposes to achieve its objectives. (2), not (1), obliges Raz to support the principle of damages. At first glance, it seems strange that a supporter of the allegation referred to in point (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 can this be reconciled with the assertion that there are no fundamental limits to the pursuit of moral goals by the state? A big concern here is that it didn`t help us at all. The idea is that the law should not use controversial premises on the property to make laws. Take, for example, a legislator, perhaps a religious one, who is of the opinion of a small minority that personality begins at the moment of conception and who, on that basis, declares a law illegal. This is exactly the kind of stage that Nagel and Rawls want to exclude. A controversial viewpoint like this has no place for them to pass laws for the public that are supported by coercion. Whether it is metaphysically true or not that the personality begins from the moment of conception, such a vision must be tightly closed.
The introduction of “crime” and certain types of paternalism as potentially legitimizing reasons makes it a little misleading to speak of the “harm principle” as a principle shared by all the leading thinkers associated with this principle. I will continue to do this only as a shortcut. The following table illustrates some differences of opinion in the views of leading thinkers associated with the principle of harm versus the reasonable limits of legal coercion. None of them have an account with exactly the same conclusions as everyone else. In all the above examples, the desired goals cannot be achieved. The harsh legal penalties imposed by those who try to curb violence in the streets can only lead to an increase in violence, as the perpetrators claim that they can be hanged for both a sheep and a lamb. The ban on alcohol consumption can only drive consumption underground, miss its purpose and only increase the stock of social harm if other criminal incidents related to the ban increase. Homeowners, rather than opting for legally required improvements to their rental property, can simply take their properties off the market, resulting in less affordable properties available for rent and fewer needs to satisfy. In any case, the law has broken. After observing the results of their efforts, legal officials may conclude that it would have been preferable to use other means or perhaps even do nothing to tolerate the previous extent of the damage, as their means of putting an end to it did not solve the desired problem, but exacerbated it.
If they aim for the best result, as they see, they have only achieved the third best, and now the problem could be the embarrassing problem of returning to the second best. This chapter aims to address the challenge feinberg poses (particularly in Harmless Wrongdoing, the fourth and final volume of The Moral Limits of the Criminal Law) to those of us who reject the liberal view. The chapter attempts to show that Feinberg`s argument raises key questions against proponents of the “legal application of morality” by presupposing the truth of certain moral judgments that, although widely shared by liberals, non-liberals generally reject. The chapter also provides a response to an important and very original feinberg argument for showing that natural law theorists and other traditional moralists cannot reconcile their retaliation with the punishment of “victimless” immoralities. 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 into society. It also operates, as we have just seen, with an unsatisfactory understanding of what morality is. This allows for the possibility of a more advanced presentation of legal moralism that does not make these mistakes and considers morality reasonable, but also maintains Devlin`s assertion, quoted at the beginning of the article, that “there is no area of morality into which the law must not penetrate under any circumstances.” His own report did not give a clear path, but his challenge to those who proposed the principle of prejudice and similar limitation periods was to provide an adequate basis for isolating certain areas of state morality when passing its law. What, then, can be explained by the second way of negotiating the problem of discrimination, why the evil of coercion itself excludes coercion on the basis of (harmless) immoralities, but not on the basis of harm? According to the argument of asymmetry: coercion to prevent harm leads to the gain of autonomy, coercion to prevent (harmless) immorality, leads to loss of autonomy; And this explains why legal coercion should be limited by harm-based considerations.
It is in the interest of autonomy. The law has limits. It has at least the intermediate or practical limits that have just been discussed. But it`s too undisputed to be a particularly interesting claim, and there`s nothing like the taste of what made this topic so controversial. We will come back to that in a moment. However, it is important to keep these practical limits in mind, because one way to delineate the limits of the law is that these practical limits are the only limits that states must negotiate in their more general legislative and legal behavior, apart from the platitude that they must act in a morally acceptable manner. In this sense, the immorality of an act or the value of the goal to be achieved are not in themselves sufficient for the coercion of the State. The controversy begins when the issue of principled boundaries is raised. Intermediate or practical boundaries apply to evil and unjustified regimes as well as legitimate regimes, albeit in different ways.
If we assume that a state, by the instruments of its law, has or should have the formal purpose of a legitimate government, should we ask ourselves whether there are fundamental limits to the law? Lord Devlin denies in the quotation at the beginning of the essay that there are such limitations. As we shall see, meeting the challenge of articulating principled boundaries is anything but an easy task.