with the concept of harm is that it always requires identifying harms to particular
individuals or groups, whereas there may be a good which cannot be reduced to
identifiable individuals or groups; this might be an image of society which guides
people to behave in a certain way. We can call this a free-floating goodbecause
although it is the product of human experience it cannot be reduced to the interests
of individuals, or even groups. It could be argued that no society will survive unless
it pursues some goods and the protection and promotion of these goods provide
the justification for restricting human freedom. If certain things are objectively
valuable then any rational mind, contrary to Mill’s fallibility argument, will
recognise them to be so. John Finnis, in his book Natural Law and Natural Rights
(1980), observes that almost all cultures, despite apparent differences between them,
exhibit a commitment to certain goods. He cites anthropological research (although,
unfortunately, fails to give any reference for that research), suggesting that almost
all cultures value the following: human life and procreation; permanence in sexual
relations; truth and its transmission; cooperation; obligation between individuals;
justice between groups; friendship; property; play; respect for the dead (Finnis, 1980:
83–4).
Stephen, Devlin and Finnis would not reject the idea that people should have a
sphere of freedom (‘private sphere’), but would maintain that it is a function of the
state to change human behaviour, and that law should reflect morality. This position
is termed legal moralism. For example, Finnis has been a vocal critic of laws which
treat homosexuals and heterosexuals equally, arguing that equal treatment implies
that they are equally valid: a position he rejects, maintaining that homosexuality is
contrary to natural law.
The difficulty with legal moralism is that it assumes more than just a shared
morality – it assumes a shared conception of what is ultimately valuable. Many
defenders of freedom would agree that we need a shared morality – respecting other
people, and not harming them without their consent, is a moral position. But such
a morality leaves open many questions of what is truly valuable in life – individuals,
it is argued, must find their own way to what is valuable. This does not mean that
there are no objectively valuable ends, but simply that coercion, by definition, will
not help us to get there: the state can stop people harming one another, but it cannot
make people good.Boxing and sadomasochism
We began with the Operation Spanner case (officially R. v. Brown) and we can
now apply some of the concepts and arguments developed in this chapter to it. The
defence case was fairly straightforward: all the participants were consenting adults
and if boxing is permitted then by analogy so should (consensual) sadomasochism.
The prosecution countered that consent was not enough; the activity itself had to
be justified. Various harmful activities passed this test: surgery; boxing; tattooing;
and ear-piercing. The correct analogy to sadomasochism was bare-knuckle fighting
and duelling, both of which are illegal.
But without further argument the categorisation of some activities as legitimate
and others as illegitimate looks arbitrary. A first line of argument has already been50 Part 1 Classical ideas