Mills Theory Vs. Devlin's Theory Of Harm

The theory that best articulates how harm should be applied to law can be viewed as either Mills theory of Harm or Devlin’s theory of Harm. Both theories are equally effective however; Mills theory is better suited towards law since it is directed towards privacy of the individuals. Mills theory unlike Devlin’s does not take into account morals and society mainly due to the fact that with these policies, individual’s privacy are being taken away. This argument can be established through four cases that occurred in Canada. The four main cases that aid in proving mills theory is more accurate towards law are Butler v. Canada, Little Sisters Book and Art Emporium v. Canada, Bedford v. Canada, Labaye v. Canada, and finally are there other options …show more content…
Canada proves the fact that the state needs to have definite proof of harm to be able to allow law to intervene into people’s private lives. The law cannot rely on the means to protect society from Devlin’s theory of harm to create a basis in which law can interject itself into the private lives of others. This case provides evidence that not only does Devlin’s theory not work, but it also shows how law properly works through Mills theory of harm. The evidence that aids the most is the “community standard of tolerance” test. The reasoning why the “community standard of tolerance” test worked so well was because it allowed for a more broad state of convening people to make a decision, rather than a specific area that may argue that it is way too obscene to have in their neighborhood. This allows for Mills theory to prove that as individuals it is okay for obscene materials to be sold at Butler’s venue and that it is not up to the people to decide whether it is right or wrong for him to be marketing these objects. The Butler case is key, mainly because it set the precedence for how a lot of cases are handled. This precedence works not only in the matter of allowing people’s private lives to be left alone, but also shows how law is starting to change from Devlin’s viewpoint of Harm to …show more content…
Canada deals with the actual fact of what is more important protecting society or protecting the rights of the individual. This situation debates whether the theories of Harm are suitable enough to do so without any aid from regulations to add an extra level of protection for people. The community standards test being abolished from law had a big role in changing how Harm was indicated in law. The new process in how the criminal code indicates whether something is obscene or not is through a two-part process. The two-part process indicates whether the situation harms those directly affected by it and is the harm incompatible with society in a whole. The case states that even with the new type of test for harm, it is still not properly being implemented in the lower levels of courts in Canada. Although this case was only fighting to change the criminal code its extremely important in showing which theory of Harm is the best fit for