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Essay: The Limits of Law: A Jurisprudential Perspective on the Tussle between Freedom and Authority

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  • Published: 1 February 2018*
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  • Words: 999 (approx)
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The tussle between the freedom of individuals in a society, and the pervasive presence of the State through its laws, has been the subject of much jurisprudential dialectic, and often manifests itself through an normative inquiry into the limitations of the law. It is based on the understanding that the authority and freedom are contrarian forces, such that more authority would mean less individual freedom, and vice versa.

John Stuart Mill, in his seminal work, On Liberty, attempted to answer this question through his famous ‘Harm Principle’. In doing so, he created a distinction between ‘self-regarding’ actions, and ‘other-regarding actions, and thence argued that the State must intervene to regulate or restrict only those actions of an individual that impact or have an effect upon other individuals in society. According to Mill, an individual must be accorded absolute freedom to live as he desires, and do anything that he may want, so long as its implications befall upon only himself, and no other. This would enable individuals to engage in their unique ‘experimentation of living’, something which according to him, in the longer run leads to the realisation of truth. Mill, however, does concede that in certain situations, paternalism is acceptable and even necessary. This is true, according to him, in the case of children, ‘feeble-minded’, and ‘uncivilised peoples. Notably, the last exception led him to justifying oppressive colonial  regimes in Asia.

Mill’s view has been subject to criticism, and the general belief amongst scholars and legal thinkers is that this perspective on the limits of law is unsustainable. Mill’s attempt at providing a singular principle to the question, being predicated on the distinction between ‘self regarding’ actions, and ‘other regarding’ actions, beset the contention, if at all there are any truly ‘self regarding’ actions. It can convincingly argued that all acts of individuals have implications upon others, and therefore no act is truly limited to oneself. Moreover, those actions that may seem ‘self-regarding’ at one point, may become ‘other becoming’ at a successive stage. Therefore, Mill’s attempt to delineate a limitation for the law largely failed.

 It was the British legal philosopher HLA Hart, who next attempted to provide an answer to the question pertaining the normative limitations of the law. In doing so, Hart also attempts to create a distinction, and he does so by segregating human action into those that take place in the private sphere and those that do in public sphere. Hart believed that interference by the State must not take place to regulate or govern actions of individuals so long as they are done within the private sphere. As long as a person does what he does in the confines of his privacy, Hart argued that the State would do well to not intervene. Hart’s distinction in the context of limits of law does find frequent mention in debates surrounding homosexuality, and admittedly makes for a compelling idea. However, it is true as well that Hart’s conception of privacy as being inscrutable, fails to find ground when one analyses the concept and its effects thereof in detail.

For instance, merely because an act is in the private sphere, it does not mean that the state must necessarily refrain from interfering. There is a plethora of human action that may take place in the private sphere, which might find themselves to be morally abhorrent, and most would agree that state intervention therein is necessary. This may include pornography, prostitution, domestic violence, sado-masochism, amongst many other. It is therefore not convincing on part of Hart to argue that all acts done be omitted out of the state’s purview. Any concession towards paternalism of the state herein would only show to weaken the argument put forth by Hart. Moreover, acts done in private tend to sometimes come forth in the open public space, and should that happen, Hart’s distinction then fails to provide an answer to the question in any manner.

Lord Devlin also approached the question, and he does so by firstly trying to develop a conception of society as not just a community of people, but that of a group of individuals who coexist together because they have common ideas and moralities. He calls this generalised moral understanding which prevails in the society as public morality. He argued this public morality is the bedrock of any society, and therefore the society’s existence is predicated upon it. As such, a society has to ensure that the public morality is inculcated into each of its members, so as to ensure the maintenance and perpetuation of the society. Therefore, Delvin comes to the conclusion that a society has the ability and the capacity to impose moral judgements upon its member. This must not be construed to mean that he actually favour moral judgements by the society upon its members.

To the moral question of where the limit of the law is, Devlin chooses to not give us a general answer, but instead argues that the question must be answered from a case to case basis. Each case, therein, would involve the balancing of values in a society, with practical considerations, and this he feels must be adjudicated through the common law metric of the reasonable man. He believed that a dispassionate and rational deliberation to arrive at a moral conclusion in answer to the said question is what must be attempted at. In doing so, he feels that those are educated have the onus of influencing public morality towards reaching that perfect balance.

Most scholars agree with Devlin, and it would be fair to say that this has been the most convincing answer to the question that has been put forth yet, however, it is also pointed out by Devlin’s critics that perhaps the assumption of moral convergence that forms the base of Devlin’s conception, may actually have been overstretched. Devlin never responded to this criticism, and we are yet to receive a kind response to it.

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