Morality in Criminal Law: Devlin vs. Mill Argumentative Essay by TemiA

Morality in Criminal Law: Devlin vs. Mill
This paper discusses Lord Patrick Devlin's and John Stuart Mill's stances on morality in criminal law.
# 153881 | 1,200 words | 3 sources | MLA | 2013 | US
Published on Jun 06, 2014 in Philosophy (Ethics) , Law (General) , Ethics (General)

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There are a number of philosophical views on the long-debated question: to what extend should morality play a role in the formation of criminal law.In this paper, the writer examines two vastly different stands in this discussion, that of Lord Patrick Devlin and John Stuart Mill. By examining these two different stands, the writer is able to highlight the distinct differences in the ideology of the philosophers. Furthermore, the writer argues that neither thesis is adequately functional as a legal structure.

From the Paper:

"John Stuart Mill sought out to answer questions similar to Devlin's. He asked: what is the justification for the State's power over individuals and what is the extent of the state's power over individuals? First, he explains that citizens in any society need protection from the tyranny of both the ruling class and the majority. Mill claims the ruling class is dangerous because of its power to force its own ideals and interests onto its subjects. However, immunity rights are sufficient to protect the citizens from that coercion. The tyranny of majority is harder to protect against. "[T]he will of the people [...] means the will of the more numerous or the most active part of the people [...]; the people, consequently, may desire to oppress a part of their number" (Mill, 10). Participation rights are not enough to protect those in the minority from being overruled by the majority. In Mill's opinion, employing what he refers to as the harm principle will protect the interests of the minority. A harm is anything contrary to our interests, all things that allow for a progressive being (Mill, 17). He states, "The only purpose for which power can be rightfully exercised over a member of a civilized community, against his will, is to prevent harm to others [...] Over himself, over his own body and mind, the individual is sovereign" (Mill, 16). Mill goes on to derive three rights from the harm principle. Like the rights of immunity and participation, rights are outside the reach of tyrannical opinion. The liberty of consciousness is the freedom of thought, feeling, opinion, sentiment, expression, and publication. The liberty of tastes and pursuits is the freedom to pursue a life plan, as long as it does not harm that of others. The liberty of combination is the freedom to unite for a harmless purpose (Mill, 18)."

Sample of Sources Used:

  • Devlin, Lord Patrick. "Morals and the Criminal Law." 1965. Web.
  • Dworkin, Ronald. "Lord Devlin and the Enforcement of Morals." The Yale Law Journal. The Yale Law Journal, May 1966: 986-1005. Web.
  • Mill, John Stuart. On Liberty and The Subjection of Women. London: Penguin, 2006. Print.

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