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Immanuel Kant Essay #2

"(I)t is one thing ... to tolerate vice so long as it is inoffensive, and quite another to give it a legal right not only to exist, but to assert itself in the face of the world as an 'experiment in living' as good as another, and entitled to the same protection from law"

Consider the meaning of this statement. Reflect upon the extent to which you agree with it providing evidence and argument to support your position.

In a very basic format this statement is suggesting that it is acceptable that persons have vices, .i.e. that they carry out acts or do things that other persons, or indeed the public at large would perceive to be morally wrong. The statement then goes on to explain that it is not acceptable to give such vices or moral wrongs the validation of law and furthermore offer them the same protection as law. This may encompass issues such as euthanasia or abortion or human tissue donation. In essence this statement is dealing with those things that are not in the opinion of most ethically correct and therefore whilst can be accepted by society should not be given the status of law. So therefore The Abortion Act 1967 should be in existence because we can tolerate it but, it should not be given the same protection from the law, so for example a person should have their choice to have an abortion protected over say the choice to go ahead with a pregnancy - a very crude example but this illustrates the point. Thus the essence of the question is whether we can separate what is essentially ethically right from what is legally right or whether or not these two are one in the same. This assignment will explore the truth of this statement, whether or not it stands up to today's concepts of law. In doing this it will explore in particular the theories of Kant and Mills.

Kant's theory of law is very useful in justifying this concept as will be demonstrated. Kant pointed out that a good will is intrinsically good; its value is wholly self-contained and utterly independent of its external relations. Since our practical reason is better suited to the development and guidance of a good will than to the achievement of happiness it follows that the value of a good will does not depend even on the results it manages to produce as the consequences of human action.

Kant's moral theory is, therefore simply that actions are morally right in virtue of their motives, which must derive more from duty than from inclination. The clearest examples of morally right action are precisely those in which an individual agent's determination to act in accordance with duty overcomes her evident self-interest and obvious desire to do otherwise. But in such a case, Kant argues, the moral value of the action can only reside in a formal principle or "maxim," the general commitment to act in this way because it is one's duty. So he concludes that "Duty is the necessity to act out of reverence for the law." By virtue of which it can be applied at all times to every moral agent. From this chain of reasoning about our ordinary moral concepts, Kant derived as a preliminary statement of moral obligation the notion that right actions are those that practical reason would will as universal law.

Ethical thought may be either normative or descriptive. The former is concerned with what we ought to do, the latter with examining the arguments and values employed. The latter is particularly relevant to legal analysis, allowing us to examine the ethical roots of legal principles, and the ethical implications of their interpretation and application. The process of revealing ethical positions which underlie the creation and development of law allows us to evaluate whether acts and beliefs that we think are right and true can in fact be supported by a consistent and coherent system of reasoning.

Morality and legal principle are not necessarily harmonious. What we as a community actually do, for example, in terms of the laws we sanction, does not necessarily justify what ought to be done. Morality is normative, not descriptive in nature: an 'ought' cannot be derived from an 'is'. Despite this, it would be remiss to disregard relevant legal doctrine totally. Additionally, although law and morality are ostensibly separate fields of inquiry and are not necessarily harmonious, as a matter of fact when the law touches on areas of grave human concern (such as the matters of life and death) it is important that the two areas overlap; if not in theory then at least in practice. Hoffmann LJ in the Court of Appeal in Airedale Trust v Bland acknowledged that it was unusual for a judge to argue from moral rather than purely legal principles; however: Euthanasia is not an area in which any difference can be allowed to exist between what is legal and what is morally right. The decision of the court should be able to carry conviction with the ordinary person as being based not merely on legal precedent but also upon acceptable ethical values.

Yet moral and political theory are not so neatly separated as it might seem, and many moral philosophers have accorded great importance to institutional settings, long before Jrgen Habermas' mutual stabilisation of law and morality. One need only recall that Immanuel Kant, the philosopher probably most often referred to by liberal internationalists, insisted that, in order to avoid the discord arising from the unclear delimitation between morally defined rights, everyone was under an obligation to leave the pre-social state and to subject themselves to an external power.

As stated, for Norrie, the essential function of the criminal law is the maintenance of order in an unequal, conflict ridden society. This fact is a disruptive element in criminal law adjudication. Decisions by officials applying and enforcing the criminal law are not necessarily exercises in bad faith disguising naked power relations. A significant number of officials who administer the criminal justice system take the need to do justice seriously. And, as Norrie acknowledges, the Kantian model of justice, with its emphasis on freedom and autonomy, endorses important values. By and large the Kantian model of justice sits well with the project of maintaining order in an unequal, conflictual society. Using as its yardstick a model of human agency which assumes freedom of choice abstracted from social background, many factors grounded in social reality are eliminated from the trial stage notwithstanding the relevance of such factors for the culpability of individual defendants. In the conceptual apparatus of the criminal law, the Kantian model is imprinted by way of 'precisionistic rules' and narrow categories of excuse. But as it is a system of criminal justice as opposed to raw coercion, claims of justice not endorsed by the Kantian model break through into trial adjudications of liability.

Mills theory was somewhat differs from Kants. It is with freedom of opinion and discussion that Mill is primarily concerned. Freedom of action follows naturally on that; men must be allowed to do what they are allowed to talk about doing. what Therefore what Mill's demonstrates is that there are a number of people doing things he himself would disapprove of, but doing them earnestly and openly and after thought and discussion in an endeavour to find the way of life best suited to them as individuals. This is a difficult theory to equate to reality as a man does not as a rule commit bigamy because he wants to experiment with two wives instead of one. He does not as a rule lie with his daughter or sister because he thinks that an incestuous relationship can be a good one but because he finds in it a way of satisfying his lust in the home. He does not keep a brothel so as to prove the value of promiscuity but so as to make money. There must be some homosexuals who believe theirs to be a good way of life but many more who would like to get free of it if only they could. Certainly no one in his senses can think that habitual drunkenness or drugging leads to any good at all.

These are of course the vices that the law seeks to control. If the ninety men, who sincerely believe all this to be depravity, are to be convinced that they must put up with it in their society because after all they are not infallible, their truths may be only half-truths, and that it is only by diversity of precept and practice that the whole truth can be found, surely they must be persuaded that there is at least one man among the ten seeking after the truth and proclaiming that what is commonly received as a vice is in truth a virtue. Freedom is not a good in itself. We believe it to be good because out of freedom there comes more good than bad. If a free society is better than a disciplined one, it is becauseand this certainly was Mill's viewit is better for a man himself that he should be free to seek his own good in his own way and better too for the society to which he belongs, since thereby a way may be found to a greater good for all. But no good can come from a man doing what he acknowledges to be evil. The freedom that is worth having is freedom to do what you think to be good notwithstanding that others think it to be bad. Freedom to do what you know to be bad is worthless.

As Devlin points out Mill believed that diversity in morals and the removal of restraint on what was traditionally held to be immorality would liberate men to prove what they thought to be good. He would have been the last man to have advocated the removal of restraint so as to permit self-indulgence. He conceived of an old morality being replaced by a new and perhaps better morality; he would not have approved of those who did not care whether there was any morality at all. But he did not really grapple with the fact that along the paths that depart from traditional morals, pimps leading the weak astray far outnumber spiritual explorers at the head of the strong.

Should a person, he asked, be free to be a pimp or to keep a gambling-house? Against the affirmative answer which flows logically from his doctrine, Mill put the following argument. If society believes conduct to be bad, it must be at least a disputable question whether it is good or bad: that being so, society is entitled to exclude the influence of solicitations which are not disinterested. There was, he thought, considerable force in this argument and he would not venture to decide the point.

Mills theory is closer to the statement listed above, he recognises that at least people do have vices, and that they are not necessarily whilst maybe morally incorrect not legally incorrect. However this is not to say that we should concur with his view, as it is true that many of the laws in society find there basis in morality, but not since the enactment of the Human Rights Acts, at the deprivation of liberty. It is therefore concluded that the answer lies somewhere between the two theories and that whilst some vices find their status in law and also receive protection from the law, ultimately it is only those which society as a whole are willing to accept.

Bibliography

Cases

• Airedale Trust V Bland [1993] Ac 789 At 825. See Also Lord Hailsham, In Howe [1987] 1 Ac 417 At 428

Legislation

• Abortion Act 1967

Journal Articles

• Brown D, (1974) Mill on Liberty and Morality, Philosophical Review 81
• Devlin P, (1964) The Enforcement of Morals, University of Chicago Law Review vol 32 no 2
• Krisch N, (2002) Review Essay - Legality and Morality and the Dilemma of the Human Intervention after Kosovo, European Journal of International Law 13 (323)
• Oquendo A, (2002) Deliberative Democracy In Habermas and Nino, Oxford Journal of Legal Studies 22 (189)
• Pigden C, (1991) Naturalism in Singer P, (1991) A Companion To Ethics, Basil Blackwell Oxford

Books

• Bix B, (2003) Jurisprudence Sweet and Maxwell
• Harris J, (1997) Legal Philosophies Lexis Nexis
• Norrie A, (2000) Punishment, Responsibility and Justice - A Relational Critique, Oxford University Press, Oxford
• Simmonds N, (2002) Central Issues in Jurisprudence, Sweet and Maxwell

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