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Hart vs Devlin Debate On Enforcement of Morals
§ John Stuart Mill argued that society has no right to enforce its moral
perceptions where their violation would not cause objectively variable harm to
others. Absence of harm may be dangerously inhibited by moral oppression which
is when it is put down by force
§ Hart and Devlin debate followed publication of Wolfenden Report:
Ø Report of the Departmental committee on homosexual offences and
prostitution. There will be a committee looking into homosexual offences, to
investigate and look into conviction
Ø The committee here is concern of legality of homosexuality and prostitution
was investigated by this committee and claimed that it is not the duty of the
law concern on morality but on freedom of choice and privacy of morality
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DEVLIN
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HART
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He said law without morality destroys freedom of
conscience and is a paved road to tyranny
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Societies survive changes in basic moral views and
absurd to say when such changes occurred, society disintegrated
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Argued criminal law must respect and reinforce the
moral norms of society in order to keep social order from unravelling
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Humanistic and individual view while Devlin focus on
majority rule and ho societies see it as it is.
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Moral laws are justified to protect society against
the disintergrity effects of actions that undermine the morality of a society
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criticizes judicial enforcement of certain morals as
judicial moralim: meaning is it
just because they made a decision which upheld morals, it cannot be said as
applying judicial moralism as it could have been decided on the basis of
other reasons
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Immorality is what every right minded person
considers to be immoral
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Criticizes Shaw v Director of Public Prosecutions
where it stated that the King’s court is general censor and guardian of the
public manners. This case is on conviction for conspiracy to corrupt morals
involving prostitute’s consideration here.
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His gist is that privacy should be respected which
makes him moderate moralism, law should only intervene when society won’t
tolerate certain behaviour, law should
be a minimum standard not a maximum standard and act as general
guideline
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Argues morality cannot be enforce through coercion
and that legal sanction is not the only or even effective disincentive from people
doing allegedly immoral behaviour
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laws should enforce morals only in those conditions
which demand the preservation of society
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Moral standards change and therefore even within the
same society, moral feelings may not be spread out evenly
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Devlin didn’t say that every immoral act is to be
prohibited by law
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Asserts bigamy and polygamy can be prohibited by law
not on moral but on paternalistic grounds
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Devlin used was the jury box morality that of average
right minded citizens where moral standards of behaviour are the standards of
behaviour of a reasonable man
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He argues bigamy and polygamy should be prohibited
because:
(a)
It is an affront to a public ceremony
(b)
Throws legal obligations of the parties
confusion
(c)
Bigamist should be punished not for
being irreligious but for being a nuisance (not on morals grounds)
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Qualified liberalism
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further argues popular conviction is held only when
the moral violations would become intolerable the criminal law can safely and
be used properly
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Devlin argues that majority view in morality still
prevails but in R v Bishop finally it was held that homosexuality was an imputation
against character
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Devlin claimed many today does not understand that
abortion is wrong
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Critique: Devlin would not be applicable to all
societies like Saudi Arabia where religiously determined moral rules constitutes
the whole law
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Is a moderate liberalism
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§ Starting from 1967, homosexual conduct no longer criminalised
§ See case Lawrence v Texas where private homosexual activity no longer
offence in US
§ Toonen case: in 1991, Nicholas Toonen, a homosexual
man from Tasmania sent a communication to the Human Rights Committee. At that
time, homosexuals were criminalised in Tasmania. Toonen argues that it violated;
Ø Article 17 of International Covenant of Civil and Political rights (ICCPA)
Ø Article 26 discriminated against homosexuals for the basis of their
sexuality
Ø Here he complained and therefore he lost his job as the government had
threatened that they will withdraw the funding
for his work place if he was not fired
Ø Only in 1994, Human Rights Committee looked into this matter and sai
Australia was in breach of obligation under the treaty and therefore
Commonwealth government paused a law overriding Tasmanian law criminalizing
homosexual sex
§ Fuller’s consideration is that there must be laws and rules are not
sufficient
§ These laws must be publicized
§ These would also apply in instances of death penalty discussion, euthanasia
and abortion
§ But there will be difficult to enforce morality and the issue of obey comes
in
§ University medical research regarding link between smoking and cancer was
in some instances subsidized by cigarette companies and this is an example to
consider on morality
§ Morality should not always be based on morality of majority since majority’s
morality could be wrong. Example prosecution of Jews by Nazi and other
categories of people and argue it is immoral and at the same time another could
argue that this was don based on moralistic reasons
§ Determine how would it be if Devlin and hart is to look into bigamy or
adultery issues + female genital mutilation issue which was considered as
violation of human rights of girls and women
§ Dworkin comments that Devlin’s moralistic attitude is what Devlin
considered to b immoral
§ Enforcement of moral is related to the role of state and regulation of
conduct of people
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