Week 2

Monday, 31/07/17
Liberalism and the Harm Principle

Revision from lecture 2

Principles of law
- Natural Law: each person has a natural teleology; the way people are supposed to exist in
society
 Can be attached to religion/ particular beliefs
 Offers a way to look at the human and attach ideology
- Positivism
- Common Law
- Rights based liberalism: Rights justifying what you can and cannot have
 Also draws on utilitarianism
- Utilitarianism
o See Margaret Davies Asking the Law Question.
Ideas of positivism are generally attached to natural law ideas
Equality
-Liberalisms were largely framed in the context of democracies and rights being instituted in
Europe and the US in the 18th Century
-These accompanies the overthrowing of monarchies
Eg. French Revolution – late 18th Century. 1789-1799
American Independence (Declaration 1776)

The Social Contract

Rousseau
“all being free and equal surrender their freedom only when they see advantage in doing so”
- They have free will to be in contract with the state
- The state can intervene when they cause harm to another
“since no man has any natural authority over his fellows and since force alone bestows no right,
all legitimate authority amoung men must be based on covenants”

John Stuart Mill

“…only part of the conduct of any one, for which concerns others. In the part which merely
concerns himself, his independence is, of right absolute.”

Obedience is part of what you live everyday

The only way that the state should be able to have power over you is when you do harm to
others

Harm Principle
- Liberal democracy, as freedom and equality of the people all rule, were what was to
emerge
AND SO
“the only purpose for which power can be rightfully exercised over any members of a civilised
community, against his will, is to prevent harm to others…” (John Stuart Mill)
State intervention and freedom
- People are free and independent
Only until they harm someone
 This may be within what they are thinking (attempted murder, paedophilia)
 Setting up a terrorist attach

At this point the state intervenes

The Political question is: “Where?”

In the 1900’s murder was criminalised but NOT attempted murder because NOBODY DIED
Anything that you think is within legal parameters

The private -begins and end ‘where’?

-The point before the state intervenes is the private,
The private is the subjects own…
Body, home, community?

These are the domains in which the subject is sovereign and the state sovereign cannot touch
them

Liberalism
Lassex faire, libertarians
-the state is a necessary evil

Utilitariansism
-The greatest good for the greatest number
‘Maximization of happiness’
‘what action would produce the greatest overall hapiness’?
Objections- overall happiness/ good, ‘a notion of happiness’

Welfare liberalism
-still concerned with the individual, but concerned with well being and life chances
-concerned with enabling equality through giving the subject a helping hand
-what kind of helping hand might……..

Equality problems
- Equality has some conundrums that some liberalisms attempt to overcome…
- For example
- - are the poor and rich both free
 To what?
 To sleep under bridges, to sleep in a hotel?
- Equality as a formal principal
Consider the one-armed swimmer analogy
 rules are equal for everyone, but not everyone is the same

it is the substance which becomes important, not everyone is the same

Part II – Max’s moral conscience and how we see/ feel the world
- Foucault
- Truth/ right/ power
- Knowledge
- Ideology, hegemony – dominant values

Power take many forms – it is a sanction legally

Hegemony where the dominant values become articulated in

Truth

Power Right

articulated by a person of power becomes the truth

Power is the ability to make you believe what is right (Naming power)
Once you see reality with the categories you mobilise them to determine if something is harmful
The dominant values dictate where the harms start and end

Tuesday, 01/08/17
Where does Sovereignty Begin and End?

Truth/ Right/ Power as it intersects with harm

- Intersecting political ideals
- Overlapping and intersecting legal principles
 Laissez faire liberals (right wing movements) down one side and welfare
liberals (more like communism) down the other end
o Laissez faire believe that the state should be removed,
minimal intervention in ones life. More of a dog eat dog
world where people need to battle between themselves.
Darwinian in the fact that it believes that those who can
survive in a free market will rise to the top.
o Welfare liberals believe that the state should intervene to
change the substance of people’s life to bring everyone
closer to equality, both financial substance and life choices
 (this should be enabled through law). A harm is poverty.
CentreLink is an example of welfare liberalism.
- Belief/ truth/ desire
Foucault moment: where you believe that it is right/ correct for that harm to be policed, for
the state to intervene, it a product of those principles and political ideas intersecting with who
you are.
 Where you believe the state should intervene is due to your beliefs
and truths
 The belief that the law is right and that you consent to it is based
on the fact that you fear punishment and that you want protection
from it. Based on a deep understanding of what the world is.

Truth

Power Right

What you believe, how you in act it and how that relates to truth in the world
“The ways in which the world begins to become as that (categories we use to live: boy, girl) the
way we think of the world comes to be thought of in that way because of the intersection of
these three things”

1) Truth :

Law is necessary is an idea presented without question: this is backed up by the people who try
to assert it who already have existing forms of power (the power to name reality)
- Qualifications are evidence used to back up power
- Parents had the first power to name reality

Tropes that gives people dominant power are very subtle and can sometimes be seen within ads.
->This offers naming power to those people in the ads because they are seen as good
people

Knowledge is created by all of us all the time -> it is how we reproduce your reality : people
perform this version of power all the time and thereby reasserting the social contract (through
obedience)
Truth / Right / Power offers a way of understanding the power operating to show you what you
are looking at.
- That means that when you look at something that happens in the world, you or the law,
you then decide where is the harm based on all the ideas of life that have been bought to
bear on your knowledge.
- The natural role of an object, such as a body, is based on how you see the world and how
you see one another -> in that way we agree to laws as a sanction of that.

The idea of parents hitting their children when they did something wrong sets up the social
principle that when you do something wrong you can be punished for it.
- Punishment is part of our society
- The social contract which enshrines the idea that you want to obey, choosing to give up
your freedom to get more freedom offers you a way of understanding choice

John Stewart Mill: The state should intervene outside the point of consent

Fight Club
- It is illegal to inflict grievous bodily harm because your bodies teleology may be inhibited
- It encourages people to fight one another
- It is expensive in Australia

Reg v Brown (1993)

- Brown (and others) engaged in ‘sado masochist practices’
o ‘of the grossest kind’
o ‘involving inter alia, physical torture’
o ‘obvious dangers of serious personal injury and blood infection’
- “Injuries” occurred in the practices of these acts?
- Consent was given for these injuries
- Brown and two others were convicted and sentenced to imprisonment, their appeal was
dismissed
- Homosexual relationships in a basement
- The harm of these relationships was seen to be to SOCIETY because it was seen as a cult
of violence which could potentially corrupt young men (utilitarian belief)

Reg v Wilson (1996)

- Alan Wilson branded and ‘A’ and ‘W’ on each buttock of his wife, an infection came
because of this
- These incurred ‘associated bruising’ and during the medical examination it was found that
‘the skin hadn’t fully healed’
- Mrs Wilson consented
- A Wilson was convicted, but was acquitted on appeal because:
 They were married
 There was no corruption or danger
 It is a heterosexual relationship
 It doesn’t adhere to societal norms