This argument is worrying: it might be difficult to determine the authority of such a convention, especially since it might not be easy to determine the difference between an exception to the Convention and its application in a particular case. In a particular context, the question to be answered is: are we faced with a case where the meaning of the Convention condemns a symbolic act which does not contain the original consequence which gave meaning to the Convention, namely the reduction of the appropriateness of valid options, or simply an exception to the Convention? Another issue on which I will focus more is what I will call the problem of discrimination. If there are such conventions that are based on natural facts and give coercion such meaning, what will ensure that such conventions will only tolerate coercion when used against harmful behavior, and not against (harmless) immoral or worthless behavior? Can the coercive account be discriminatory enough to accomplish the task for which it is intended? Having examined whether the argument I have just set out on the basis of the Convention can satisfactorily solve the problem of discrimination, I also consider whether another argument, which I shall call the “asymmetry argument”, can also contribute to diverting the problem of discrimination from the perfectionist defence of the principle of damage. But all this is based on certain uncontradicted assumptions of the theistic moralist – assumptions that are often the product of erroneous analogies. I intend to take a fresh look at these assumptions here. I will try to show the actual source from which values are originally derived, lay a solid foundation for a human (humanistic) moral system, and then place the burden on the theist to justify any proposed deviation. Once this is seen, one may wonder what are the reasons to believe that people cannot continue to act in this way when it comes to laws and moral teachings that govern things like trade and commerce, property rights, interpersonal relationships, sexual behavior, religious rituals, and the rest of those things that theologians say need a theological basis. The mere fact that ancient and revered holy books make statements on these matters and attribute such statements to divine moral principles does not make theology a necessity for law and morality than it would be a necessity for baseball if those rules had appeared in these ancient works. (1) If we can obey our own laws of sexual intercourse without the need for a theological or metaphysical basis, we are also able to obey our own rules in other areas. Comparable considerations of human needs and interests, in accordance with the facts in both cases, can be applied to the invention of the best laws and rules for living. We can therefore apply to laws what the astronomer Laplace said to Napoleon: in relation to a god, we “do not need this hypothesis”.
The specific version of legal moralism that Hart rejected was that of Lord Devlin. Lord Devlin, then a judge of the English High Court, responded to a government report recommending the legalisation of homosexual conduct between consenting adults in the private sphere. The report, known as the Wolfendon Report, concluded that `there must remain an area of private morality and immorality which, in short and roughly, does not fall within the scope of the law` (Wolfendon Report, 1957, paragraph 61). Devlin`s main point was to argue that this specific theoretical conclusion does not hold. Mill, of course, believed that harmless behavior was not a matter of law, whether it could be called immoral or not, and Hart`s intention in challenging Devlin was to reinforce a modified version of Mill`s view. A related and undisputed hypothesis is that, to be binding, moral values must come from a source external to man. Again, the analogy between law, judges and police emerges. In everyday life, we obey laws that seem to be created by others, judged by others, and enforced by others. Why should moral rules be different? On the other hand, is it preferable to consider that the legislature should, as a matter of principle, be denied recourse to certain moral premises based on the good life, not because the premises are bad, but to dispel the feeling that partisan notions of goodness, which are held only by some, are particularly favoured? The problem here soon arises that, if one avoids full recourse to truth in political arguments, one tends to encounter clumsy opponents who sometimes have unpleasant opinions, who like to make their arguments public, like to subject them to “reasonable rejection,” and the happiest to all claim that their principles cannot reasonably be rejected. The debate will continue for some time. The most influential recent defense of the “harm principle” – by a theorist with a reasonable explanation of morality – is that of Joseph Raz (Raz, 1986).
[5] I will discuss in a moment the basis of the principle of damages proposed by Raz. But first, a word about the original basis of Mill`s principle. Mill said utility was the ultimate attraction in all ethical matters. But given other things Mill says about it, it`s first amazing why he should think utility supports the harm principle. For he also enunciated the principle of utility, according to which “actions are proportionately just because they tend to promote happiness, bad because they tend to produce the opposite of happiness” (Mill 1993, p. 7). The latter formulation seems to advise States to keep their options open in their legislation. “Do what you can to reverse unhappiness,” seems to be the advice, “and do what you can to promote happiness.” “Coercion to avoid harming others, if it reverses the misfortune; Coercion for other purposes, if that also serves the purpose. But, as we have just seen, coercion to prevent harmless misconduct is ruled out by Mill, whether or not such a measure is the best choice of the state to reverse the misfortune.
It doesn`t matter if this harmless injustice makes everyone unhappy; It does not matter whether the coercion of those who maintain it would remove misery: the state must not exercise coercion and misery must remain. Did the confusion here produce Mill`s masterpiece? But if such an anthropomorphic vision is an outgrowth of human self-esteem, it is also evidence of a certain lack of imagination. Why must the only source of higher morality be a superhuman being? Why not something completely unusual and incredibly superior? The law has limits.