Материал: disser_arhipov

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all that it can achieve. However, although it is possible to argue about specific cases and assessments, the discussion itself about such limits of law does not cause controversy, and such a direction of thought can be considered as common. Another matter is the question of whether the limits of law can be determined by some principles. In this case, the author mainly addresses the philosophy of morals.248

While selecting concepts that can be the basis for setting the fundamental limits of law, the author focuses on several key thinkers from the field of moral philosophy and legal philosophy and their concepts.

First, it is John Stuart Mill,249 the classic of the British philosophy of morality, and his “principle of harm”. As the British author wrote,

«[t]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, whether physical or moral,250 is not a sufficient warrant».251

248Ibid.

249John Stuart Mill (1806 - 1873) - British philosopher, economist and political leader, influential utilitarianist who developed the ideas of Jeremy Bentham. See e.g.: Macleod C. John Stuart Mill [Electronic resource] // The Stanford Encyclopedia of Philosophy (August 25, 2016). – [Site]. – URL: https://plato.stanford.edu/entries/mill/ (accessed: 23.01.2018).

250Here we note that in the Russian version of the text the word “moral” we traditionally translate as its literal equivalent “moral” that usually has a narrower meaning, but we mean an extremely broad context and connotations characteristic of the English language. In English, “non-property” is also “moral” (as “non-property rights” in civil law are “moral rights”).

251J. Stanton-Ife quotes J. Mill from the following edition (original footnote): Mill, John Stuart (1993), Utilitarianism, On Liberty and Considerations on Representative Government, London: Dent. At the same time, we reproduced the quote from

the following edition: Mill J.S. Utilitarianism, Liberty and Representative Government, London: Dent. 1920. PP. 72–73. Note how close the development of thought in J. St. Mill is to the examples of absurd situations given by L. Fuller. Here is what J. Mill writes on the same pages: «He [a representative of civilized society] cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else». However, the in-depth consideration of utilitarian issues is a topic that would correspond to the consideration of the moral limits of law, rather than the semantic limits, to which this paper is dedicated. Here we will focus on a brief mention in order to distinguish the subject of the study from the limits of law of different nature.

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J. Stanton-Ife focuses on the fact that, according to J. Mill, it is about harming others, and only this, and this is the only dominant principle. Causing harm to oneself, harming another by agreement, encroachment on the interests of another (i.e. “offence”) or something not regulated by morality (i.e. “bare immorality”) cannot serve as a basis for the intervention of a civilized community in the activities of any of its members.

«The State may legitimately stop A from beating up B, even though this limits his freedom of action, because this prevents harm to B, it protects his interest in security. And it may stop A from stealing from B, as it protects inter alia B's freedom to dispose of his property as he wishes. But the State oversteps its proper limits (emphasized by me – V.A.), on this view if it purports to stop A smashing up his own property; or to protect C from the offence she will take knowing that A is doing this».252

Broadly speaking, and given the focus of the present study, it can be concluded that there are limits to the law under J. Mill, and these are defined by the “principle of harm [to other]”, since it is in the light of this principle that it is necessary, for example, to establish the meaning of the statute in a disputed case.

Second, it is Joel Feinberg,253 an influential representative of American jurisprudence in the second half of the XXth century, who developed J. Mill’s utilitarian ideas about the principle of harm mainly in the field of criminal law. While J. Mill said that the principle of harm is the only goal that can justify state coercion, Feinberg interprets it not as a single goal, but as a “sufficient basis” for state coercion. As J. Stanton-Ife notes,

«[h]is claim that harm to others merely furnishes ‘a good reason’ allows him to invoke another ‘good reason’ for state coercion—‘the offence principle.’».254

252Stanton-Ife J. The Limits of Law. Section “2. Candidates for Principled Limits to the Law”.

253Joel Feinberg (1926-2004), Philosophy of Law and Ethics researcher, Professor at the University of Arizona (last academic position). See e.g.: Feinberg, Joel [Electronic resource] // Encyclopedia.com. – [Site]. – URL: https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/feinberg-joel-1926-2004 (accessed 23.01.2019).

254Ibid.

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A characteristic quote from J. Feinberg:

«It is always a good reason in support of a proposed criminal prohibition that it is probably necessary to prevent serious offense to persons other than the actor and would probably be an effective means to that end if enacted».255

At the same time, J. Feinberg opposes “hard legal paternalism”, which implies the possibility of any prohibition in the interests of the subject, but against their will, although it allows “soft legal paternalism”, when the prohibition is introduced in the interests of the subject and does not contradict the personal autonomy of the subject.256 Before we move on to the next thinkers among those mentioned above, let us pay attention to the fact that the question of the moral limits of law, as it was raised by J. Feinberg in relation to criminal law, is very close to the subject of this study, where an attempt is made to justify the semantic limits of law, which cannot be considered as a moral necessity and sufficiency. This differs from the viewpoint presented in J. Mill’s writings, since the latter was still more concerned with moral philosophy.

Third, the author considers the argument by Lord Devlin.257 P. Devlin is known in legal theory for his controversy with Hart over the 1957 Report of the Committee on Homosexual Offences and Prostitution, known as the Wolfenden Report.258 In P. Devlin’s view, the law can and should in some cases interfere with relations that are substantially

255J. Stanton-Ife quotes the following work by J. Feinberg: Feinberg J. Harm to Others. – New York: Oxford University Press. – 1984. – P. 27. In the context of this study, it is also curious that J. Feinberg has authored remarkable thought-provoking experiments on the topic of “bus rides”, which have already been touched upon. Among other things, the author invites the reader to imagine that he is in a hurry to an important meeting, cannot be distracted, but at the same time forced to become an observer of the actions expressing a serious offence, although not causing harm in the Mill’s sense – gnashing fingernails on the glass, eating disgustingly inedible things, public sexual intimacy, insulting the state flag, etc. As J. Feinberg believes, it is obvious from such examples that harm to others in the strict sense of the word is not a mandatory condition for to criminalizing certain behavior.

256Stanton-Ife J. The Limits of Law. Section “2. Candidates for Principled Limits to the Law”.

257Patrick Arthur Devlin, Baron Devlin (1905-1922), British High Court of Justice Judge and law philosopher, who actively participated in the polemics of Western law scholars of the mid-XXth century. See e.g.: Morton J. Obituary: Lord Devlin [Electronic resource] // Independent. 11 August 1992. – [Site]. – URL: https://www.independent.co.uk/news/people/obituary-lord-devlin-1539619.html (accessed: 23.01.2019).

258Report of Committee on Homosexual Offences and Prostitution (Cmnd 247). 1957 [Electronic resource] // The National Archives. – [Site]. – URL: http://discovery.nationalarchives.gov.uk/details/r/C1386377 (23.01.2019).

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contrary to public morals. In general, sharing the principle of harm of J. Mill, P. Devlin extended the right to “self-defense” to society and the state. As J. Stanton-Ife notes, «In Devlin’s view a society is in part constituted by its morality and it therefore has a right to defend itself against any attack on that morality»,259 referring to the following P. Devlin’s quote:

«For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price».260

The Wolfenden Report contained the idea that there is an area of morality and immorality that does not fall within the scope of legal regulation, but that the position of P. Devlin, as pointed out by J. Stanton-Ife, is that such a view is not just inaccurate or approximate, but completely wrong.261 At the same time, however, P. Devlin does not argue that public morality is universal – he says that in each particular society it is possible to establish such bonds at the moment. P. Devlin’s position was so noticeable that wellknown legal theorists did not overlook his views. In addition to the above mentioned H. Hart, R. Dworkin devoted a separate article to the views of this High Court of Justice judge. Here is how the latter generalizes P. Devlin’s position: (1) in modern society there are moral standards without which society will not exist, while society has the right to exist;

(2) if society has such a right, it can create institutions of criminal law for its implementation; (3) at the same time, law should pay attention not to all cases of immorality, but to those with which public opinion is “high, enduring and relentless” so

259Stanton-Ife J. The Limits of Law. Section “3. Legal Moralism”.

260Ibid.

261Ibid.

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that it reflects “intolerance, indignation and disgust”.262 J. Stanton-Ife calls P. Devlin’s approach “legal moralism”.263

Fourth, the subject of the analysis is Joseph Raz’s views,264 who rethought the principle of harm by J. Mill and actually moved it from the field of substantive morality to the field of procedural morality (thus getting closer to L. Fuller). In J. Raz’s view, although there are no fundamental limits to the pursuit of moral goals by the state, there are nevertheless limits to the means that can be legitimately used to improve people’s wellbeing and realize moral ideals.265 At the heart of J. Raz’s moral philosophy is personal autonomy. As a general rule, coercion is not acceptable because,

«[f]irst it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy».266

Coercion can be used in some cases where socially desirable behavior or restriction cannot be achieved through other means. For a discussion of the limits of the law from the perspective of moral philosophy, the conclusion to be drawn from the writings of J. Raz and his followers is that coercion in general, and restrictions on freedom in particular, must be treated with great caution.267 J. Raz’s reasoning is undoubtedly profound, interesting and makes a significant contribution to the development of moral philosophy, but it is

262See: Dworkin R. Lord Devlin and the Enforcement of Morals // The Yale Law Journal. – 1965-1966. – Vol. 75. P.

989.In this case, we note that the discussion about the moral limits of law becomes somewhat unstructured, a characteristic feature of which is the use of fiction instead of rational argumentation. Without denying the possibility of any society’s assessment of the phenomenon considered by Devlin in this way at a certain point in time by a certain society, we note that “legal moralism” does not allow to formulate strict, scalable and formalized limits of law.

263Stanton-Ife J. The Limits of Law. Section “3. Legal Moralism”.

264Joseph Raz (born 1939) was a student of H. Hart, and is a professor at Columbia University in the United States and King's College in London, and one of the most consistent advocates of positivist legal understanding in the modern world. See: Joseph Raz [Electronic resource] // Columbia University. – [Site]. – URL: https://www.law.columbia.edu/faculty/josephraz (accessed: 26.01.2019).

265Stanton-Ife J. The Limits of Law. Раздел “4. A Perfectionist Harm Principle”.

266Raz J. The Morality of Freedom. Oxford: Oxford University Press. – 1986. – P. 418.

267Stanton-Ife J. The Limits of Law. Section “4. A Perfectionist Harm Principle”.