jurisprudence 1- harm principle by John Stuart Mill

1. JOHN GEDDES LAWRENCE
& TYRON GARNER V. STATE
OF TEXAS
NO. 02-102 SUPREME COURT OF THE
U.S.

2. CHRONOLOGY :



SEPTEMBER 1998 : police arrest John Lawrence and
Tyron Garner in Lawrence’s private apartment for
violation of Texas “Homosexual Conduct” law.
DECEMBER 1998 : Lambda Legal represent both the
accused. The motions was to quash the charges
against them as it is considered unconstitutional.
However, Harris County Criminal Court denied it. Both
of them plead “nolo contendre”; which give them
right to pursue their constitutional challenge to the
law.
NOVEMBER 1999 : Lambda Legal presents arguments
to the 14th Court of Appeal in Houston challenging the
men’s conviction.

3. Ctd:
 JUNE
2000 : court reversed the conviction of the
two men and overturn Texas “Homosexual
Conduct” law as unconstitutional.
 MARCH 2001 : after re-hearing the case, a large
panel of Texas Court of Appeal overturn the
earlier appellate ruling, upholding the conviction
of the men.
 APRIL 2002 : Texas Criminal Court of Appeal
refused to hear Lambda Legal’s appeal.

4. CTD :
 JULY
2002 : Lambda Legal asks U.S. Supreme
Court to review the constitutionality of the Texas
“Homosexual Conduct” law. The case presents
the high court two independent constitutional
claims : one based on equal protection and the
other is rights of privacy and liberty.
 DECEMBER 2002 : U.S. Supreme Court agreed to
hear this case.
 JANUARY 2003 : Lambda Legal files its brief urging
the U.S. Supreme Court to overturn the Texas
“Homosexual Conduct” law.
 JUNE 2003 : U.S. Supreme Court strikes down the
Texas “Homosexual Conduct” law and ruling for
lesbians and gays’ civil right.

5. JUDGES OPINION :
 KENNEDY
J : petitioner were free as adult to
engage in private conduct under Due Process
Clause of the Fourth Amendment of the
Constitution.
 Sexual conduct is beyond personal, it is more
than private.
 Citing White J in case of Bowers, marriage simply
about right to have sexual intercourse.
 Further, laws of sodomy do not seems to be
enforced on consenting adults.
 Relied on historical matters, homosexual was not
in discussion in early legal literature. Thus, law
prohibiting homosexual conduct is irrelevant.

6. Dissenting judgment :
 O’
CONNORS J : she disagreed with the overruled
of Bowers.
 The law limiting to the act of homosexual is to
preserve the traditional institution of marriage.
 Not simply based on a state’s dislike of
homosexual persons.
 SCALIA J : it shows that the court not prepared to
validate law based on moral choices.

7. Reactions :
 ARI
FLEISCHER (PRESIDENT BUSH SECRETARY) :
President Bush opposed to the repeal of Texas law
by stating that the law itself as “symbolic gesture
of traditional values”.
 PETER LA BARBERA (SENIOR POLICY ANALYST LGBT)
: constitute that the repealing of Texas law would
give the gays and lesbians and equal right of
respect.

8. ISLAMIC
IDEAS ON
PRIVACY

9. Introduction :
 Islam
being very tolerate towards other, which it
do not forced the non-believers to embraced
Islam; and at the same time do not strike out
other religious belief.
 In surah al-Baqarah verse 256 :

10. Ctd…
 “there
shall be no compulsion in [acceptance] of
the religion. The right course has become clear
from the wrong. So whoever disbelieves in Taghut
and believe in Allah has grasped the most
trustworthy handhold with no break in it. And
Allah is Hearing and Knowing.”
 Referring to individual liberty, Islam acknowledge
the liberty of person, except it must comply with
guidelines that has been provided.
 This is because human nature tend to create
destruction.

11. Ctd…
 surah
 “And
Yusuf verse 53 :
I do not acquit myself. Indeed, the soul is
persistent enjoiner of evil, except those upon
which my Lord has mercy. Indeed, my Lord is
Forgiving and Merciful.”

12. Islamic ideas on privacy
 Islam
do respect right of privacy of people.
 This can be interpreted from many verses in Holy
Quran and hadiths on this matters.
 Surah al-Hujuraat verse 12 :

13. Ctd…
 “O
you who have believed, avoid much [negative]
assumption. Indeed, some assumption is sin. And
do not spy or backbite each other. Would one of
you like to eat the flesh of his brother when dead?
You would detest it. And fear Allah; indeed, Allah is
accepting of repentance and Merciful.”
 In another surah, surah an-Nur verse 27 :

14. Ctd…
 “O
you who have believed, do not enter houses
other than your own houses until you ascertain
welcome and greet their inhabitants. That is best
for you; perhaps you will be reminded.”
 Thus, this show that Islam also respect the privacy
owned by the people.

15. Hadiths on privacy :
Abd Rahman Ibn Auwf reported : he would patrol
the city at night with Umar ibn al-Khattab
r.a., and on one occasion they were walking when
the lamp a household caught their attention.
They approached it until they heard loud voices
inside the door. Umar grabbed the hand of Abdur
Rahman and he said, “Do you know whose house
this is?” He said, “No.” Umar said, “This is the
house of Rabia ibn Umayyah ibn Khalaf and they
are inside drinking wine right now! So what do
you think?” Abdur Rahman said, “Indeed, I think
we have done what Allah has prohibited for us.
Allah the Exalted said: Do not spy (49:12) and
we have spied on them.” So Umar turned away and
he left them alone.

16. Ctd…


Ibn Abu Al-Hudhayl reported: Abdullah visited a
man with another man from among his
companions, and when they entered the house his
companion began to look around. Abdullah
said, “By Allah, for your eyes to have been
gouged out would have been better for you.”
The Prophet (sal Allahu alaihi wa sallam) said:
"Were a man to look at you without permission and
you threw a rock at him and knocked out his
eye, you would not have committeed any offense."
Another hadith says: "Whoever peeps into a house
without its people's leave, they may put out his
eye."

17. Extension of privacy????
 The
extension of privacy does not extend to a
situation where the conduct of the parties are
doing against the rules provided by Allah.
 This can be inferred from a hadith narrated by Abu
Said al-Khudri.

18. Hadith :
Narrated from Abu Sa’id al-Khudri r.a. he said :
I heard prophet Muhammad S.A.W. said : “if anyone
of you sees sinful act, he needs to stop it by
his hand, if he cannot then stop it using his
tongue and if he still cannot do that, the best
way of stopping it by rejecting the sinful act
with your heart. That is the very weak of faith.

19. Ctd…
 Thus,
in the case of Lawrence and
Garner, according to the Islamic ideas of
privacy, this can be a type of privacy that should
be enjoyed by an individual.
 However, the act of both petitioners cannot be
considered as privacy, as it is a wrongful act.
 No more privacy when it comes to the wrongful
act.
 An act need to be done.
 The police of Texas was right in intervening with
the privacy of both petitioners.

20. JOHN STUART MILL

21.  Mill,
always being referred as one who stand for
classical liberal theory regarding relationship
between law and moral.
“the only purpose for which power can be rightfully
exercised over any member of a civilized community
against his will, is to prevent harm to others. His own
good, either physical or moral, is not sufficient
warrant. He 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
opinion of others, to do so would be wise, or even
right.”

22. What is “harm to others”?
 Also
known as harm principle.
 This is a ground for liberty, which a powerful
authority can intervened with life of civilized
society when he done harm to others.
 Liberty according to him, is the freedom to do
anything but not to injured anyone else.
 This is actually an exercise of natural rights.
 government, despite how powerful they
are, should not be allowed to exert control on
minority groups or individual.

23. Ctd…
 Thus,
the question is what constitute harm?
 This is open to discussion and interpretation.
 Different people interprets differently.
 Mill interpret „harm‟ as synonymous as
wrongdoings.
 He does not defined clearly on what is
„harm‟ and what to be constitute as „harm‟.
 Thus, in the case can actually it is to be
considered as „harm‟?

24. Ctd…
 My
interpretation on harm would be not just
physical dangerous, but also dangerous to
the dignity, to the religious beliefs, and mind.
 Thus, if the harm would danger the religious
belief, the authority can interfere with one‟s
personal life.
 As in the case Lawrence and Garner, police
or the state actually have the right to interfere
with their personals‟ life, as their act was
causing harm to the traditional values of
marriage.
 Which in turn it can affect the society.