It can be assumed that if J.S. Mill and Lord Devlin ever coexisted some intoxicating deliberations regarding the role of morality in society would transpire. However, time has a peculiar habit of erecting boundaries amid centuries, allowing us only to presume discourse between the contemporary and the historical. Consequentially, each individual has an obligation to formulate his or her own appraisal established through the logistic unification of the particular instant and one’s own conception of idealistic righteousness. But the acquisition of an infallible and tangible philosophy with universal application would be as obstinate to create as it would to fathom. In such regard, the apparatus on which debate must rest is well constructed. If each were to believe in the intricate purity of his inspiration than no philosophy but his own would be received. It is subsequently the responsibility of that creature to sell his faculty, ensuing the continued survival of dispute.
It is the function of this formula to patiently arrive at a conciliated truth in which the majority of a society can divulge. If the perceived truth were to have an impact on the thirst and fertility of an entire society than it would be in that institution’s interest to create a fountain from which everyone could drink. It is this motive that has justifiably birthed meticulous curiosity in the works of both Lord Devlin and John Stuart Mill, each of whom have crafted disparate cures for the perils of harm in society, but neither of whom have succeeded in absorbing the values of the other. However, to adequately dissect values there must first be an ample understanding of the beliefs of each party concerned, only then can one interpret the mutual ethics from the personal.
Mill perceives only one instance in which society is justified in interfering with or limiting the freedoms of its adult members, that being to prevent harm to others. Though Mill would also claim that not all harm could rationalize intruding on an individual’s freedom, the harm must overshadow the liberty being reduced. Additionally, Mill introduces two forms of harm, direct and indirect. Direct harm occurs when the actions of one member of a society has a negative impact on another as a result of that individuals behavior. Consequently, Mill would argue that a mugger has had a direct harm on his victim because the outcome of the event was immediate and detrimental. Indirect harm is habitually tolerable because most acts can affect others; accordingly, if the act has a detrimental effect on others but only as being consequential of the affect of the individual on himself, it is justifiable.
For instance, if a man chooses to remain in ill health rather than obtain appropriate medical assistance, he is detrimental to society, but only as a result of him harming himself. This is distinguishable as indirectly harmful because there was an intermediate source of the harm, that being the man’s preference. Contrary to Mill, Devlin would categorize this form of indirect harm as immoral and injurious to society as a whole. While Mill argues that harmless actions, such as a man choosing ill health rather than being a productive member of a society must not be the subject of social coercion, Devlin would assert that the harmless action is in actuality damaging societies moral composition, requiring it to be made the subject of social control.
Stressed by Devlin is the belief that “…there are certain standards of behavior or moral principles which society requires to be observed; and the breach of them is an offense not merely against the person who is injured but against society as a whole.” In context we find the incongruity. Mill approaches the permissibility of regulating personal liberties only as an edict to preventing harm, never consenting to use the regulation of liberty to enforce morals. In contrast, Devlin’s tactic is to implement a moral principle to help protect society from itself, trusting that without this principle there would be social disintegration. Moreover Devlin asserts that moral legislation is crucial to maintain a social bond. He maintains that society has a right to protect its own existence by barring behavior that threatens that existence. This is distinctly divergent from Mill’s perceptions on paternalism.
Mill claimed that there must be unconditional rejection of paternalism by the state, only invalidated to prevent persons from selling themselves into slavery. Reinforcing his case Mill argued that paternalistic intervention is unlikely to work because an individual is acutely more aware of his or her own needs than the state is. Additionally, he argued that it is improbable compulsion would work. This can also be taken into account in the form of liberty. Mill alleges that an autonomous life has more value than a life of dependency, since one cannot be forced to be autonomous paternalism has a damaging effect on an individual. As a contemporarily relevant issue, Devlin indirectly delivers his rebuttal to paternalism by embodying a stance on homosexuality. He defends societies right to protect its own existence by vetoing behavior that threatens its sustainability, since homosexuality is detrimental to society that union has a right to prohibit it.
This is consistent with Devlin’s definition of “tangible harm”, described as a harm that instigates a diminution of the physical strength of society. When practiced in trivial quantities these activities can be harmless, however as its participants grow it has a linear effect on its harm. In accordance, he also argues that “unrestricted indulgence in vice” will weaken an individual to the extent that he ceases to be a useful member of society and society itself will deteriorate in the event that a sufficient number of its members are plagued by vice. However, the tangible harm that certain forms of conduct allegedly cause is restricted to the applicability of that behavior’s breach to the shared morality. If homosexuality is injurious to society it is so regardless of whether it violates the shared morality or not. In conjunction with this notion, Mill would affix his fundamental belief that this individual’s decision to practice homosexuality is impartial because it is a sovereign decision.
Mill asserts, “If a person possess a tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself but because it is his own mode.” Likewise, if it is generally believed that sexual immorality will effectively cause the collapse of a society there may be validation for suppressing this deviant conduct but individual freedom prevents us from accepting this. If the repression of seemingly deviant acts were the norm there would exist an agency to justify intolerances founded on, among many others, religion and race. Mill would also note that it allocates a leeway to repressing self-regarding actions, which include liberty of conscience and expression, tastes and pursuits and liberty of association. Besides the value of the self-regarding sphere, Mill stresses the importance of freedom of expression, which in proviso to Devlin, is capable in itself of tugging at the societal nit.
Devlin has suggested that society is a culturally elastic entity that persists through various changes in social mores, owing to his elastic principles it can be argued that he has a general tolerance for individual freedom. However, he rejects Mill’s perception of freedom on the basis that he has an idealistic picture of human beings. He professes that Mill holds an earnest view of an individual conscientiously doing what he thinks is right regardless of the acceptance of his behavior. This is easily categorized as Mill’s claim to freedom of expression. According to Mill, opinions or beliefs cannot be suppressed for the reason that they are among other things immoral or shocking, the only validity for suppression is if they are harmful.
As Devlin has claimed, “…freedom of action follows naturally on [freedom of expression]; men must be allowed to do what they are allowed to talk about doing…what Mill visualizes is people doing things he himself would disapprove of, but doing them earnestly and openly and after thought and discussion…This seems to me on the whole an idealistic picture.” But Devlin believes this is seldom true of those who violate the shared morality of society. He believes that most individuals acknowledge the fallibility of their conduct but continue it for lust and money. He believes, “Freedom to do what you know to be bad is worthless.” However, a person may breach the values of his society with the belief that those morals are not intrinsic and encompass various modes of conduct that he believes are morally permissible.
If the action does not harm others the liberty to pursue ones own tastes and pursuits should be boundless. By this notion, vices are only such if they are acknowledged by those who engage in them. Mill reinforces his conviction against censorship by indicating that a censored opinion might be true, or if it is literally false may contain part of the truth, additionally, if it is entirely false, a censored opinion would prevent true opinions from becoming dogma and as a dogma an unchallenged truth will lose its meaning. An individual, as mentioned by Mill, is more inclined to pursue personal righteousness with unlimited access to the truth, which requires freedom of expression. As Devlin would concede, the pursuit of individual infallibility would coincide with the aspiration of a morally entrenched society.
Although Devlin has the benefit of criticizing Mill’s assertions without the risk of rebuttal he has yet to disprove the accuracy of Mill’s libertarian approach. Devlin’s disputes address a number of Mill’s themes, including his harm principle, paternalism and freedom of expression, but fail to yield an internalized acceptance of their circular approach to discrediting one of philosophies nobles. Furthermore, Devlin’s disintegration thesis attempts to secede harm to society from harm to individuals, as such, his appeal to the concept of gross social injury could be viewed as an application of a public harm principle.
As such, the cumulative effect of harm on a collective group of individuals has the capacity to cause a disturbance in public interest. Consequently, the incongruity between Mill and Devlin can be reduced to the acceptance that Mill embraces both public and private harm, while Devlin incorporates a deviant version of private impairment and a similar notion of public hurt. If, then, the claims made by Devlin are accurate, it can also be argued that Mill would support the legal enforcement of shared morality. As of yet society still covets the search for a public fountain, probing our faculties for the cure to all our vices, but refusing to accept the likelihood that there may never be enough water to satisfy every persons thirst.