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The Legal Enforcement of Morality

The Legal Enforcement of Morality

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Published by Juan Yborra Golpe

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Published by: Juan Yborra Golpe on Jul 29, 2012
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03/05/2013

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The LegalEnforcement of Morality[
 JUAN YBORRA GOLPE
]
20/04/2012
 
C
OURSEWORK 
Q
UESTION
:
[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. ….
The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” 
 John Stuart Mill, On Liberty (1859)Utilising appropriate primary and secondary sources and making reference torelevant judicial decisions, critically comment in light of the quotedstatement, on the extent to which society in England and Wales is entitled,through the agency of the legal system and particularly the Criminal Law, toprohibit certain types of human conduct and to punish offenders on thegrounds that their behaviour is immoral.
INTRODUCTION
 This coursework requires us to carefully analyse the –in many cases, blurry-boundaries that separate morality and law, as both concepts can often serveto establish the standards of behaviour for the members of a certain society.It will be discussed then, to what extend is morality due to be legally enforcedby the law and where and how should these two elements be separated. Thetwo main approaches about what the law should aim to (enforcing morality orpreventing harm) shall also be discussed.We shall take “
the disintegration theory 
” that Professor Hart used to refer tothe theory in which morality is valued as the cement of society intoobservation as a case of study. We shall also discuss its weak and strongpoints so as to eventually try to reach the most objectively possible idea of 
 
what should be Law’s attitude unto the accomplishment of the moralstandards.Once this has been reached, we shall discuss some judicial cases andsentences that present interest for us due to a clash between morality, lawenforcement and harm prevention.
MAIN BODY 
Morality as an unifying bond 
 The disintegration thesis is strongly associated with a relativist conception of morality, Hart says. Then, according to this it could be said that due to thisrelativity, morality is prone to change from society to society. Thus, moralitywould act as a linking element amongst the members of that society and it isthis unifying, cohesive power what really matters, not the “
quality 
” of themorality itself. As Lord Devlin (one of the main defenders of the theory of disintegration) points out: “
What is important is not the quality of the creedbut the strength of the belief in it. The enemy of society is not error but indifference
” (Devlin: 114)According to him, maintaining morality is necessary to prevent thedisintegration of a society. But this leads to a question which is to what extentshould law try to keep society apart from changes? What if these changesare natural? Lord Devlin’s arguments face several major flaws in this point, ashe states that if society is not kept together through morality, bonds betweenits members will be weakened, leading to is destruction.
There isdisintegration when no common morality is observed and history shows that the loosening of moral bonds if often the first stage of disintegration.
” (Devlin:168)By stating this argument Lord Devlin commits two big mistakes. The first oneis that he gives a biased vision of history: It is true that something similar towhat he defends happened to certain societies and peoples, but he does notchoose –intentionally or not- to recall that the opposite thing happened inmany other cases for example, in the societal shift from an old feudal societyto a new one.

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