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Law and morality

Law and morality

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Published by Achmad Hidayat
This tendency, and the arguments surrounding it, can be clearly seen in the 1957 Wolfenden Report in the UK (The Report of the Committee on Homosexual Offences and Prostitution), and the debate on its approach between Lord Devlin (beginning with a 1959 lecture, reprinted as chapter 1 of The Enforcement of Morals) and Professor Hart (notably in the 1962 lectures published as Law, Liberty, and Morality).
This tendency, and the arguments surrounding it, can be clearly seen in the 1957 Wolfenden Report in the UK (The Report of the Committee on Homosexual Offences and Prostitution), and the debate on its approach between Lord Devlin (beginning with a 1959 lecture, reprinted as chapter 1 of The Enforcement of Morals) and Professor Hart (notably in the 1962 lectures published as Law, Liberty, and Morality).

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Published by: Achmad Hidayat on May 20, 2008
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Law and morality
homosexuality; recreational drugs; gambling
Reading: Mackie, ch. 10 section 2
In this and the following lecture we shall be looking at some of the connectionsbetween law and morality. There are a lot of questions here that we shall not belooking at, perhaps the most fundamental of which is one of the central issues inpolitical philosophy: is there a moral obligation to obey the law?
That question does, however, permit us to notice explicitly the fact that there are avariety of obligations. We may be obliged by the rules of a game or a professionalassociation; we may be obliged by the law and the state's enforcement machinery;we may be obliged morally. One of the questions in applied ethics concerns theextent to which the law should be lending its support to morality. I think this is anissue in which Mackie's conception of morality in the narrow sense, contrasted with abroader sense, can play a useful role.We can see this from his own claim that "great parts of what both the criminal andthe civil law enforce, at all times and in all states, are also requirements of morality[in the narrow sense] — not killing or assaulting other people, honesty, respect forproperty and other rights, the keeping of agreements, and contributing in variousways to a community's organized joint purposes" (p. 234). In these areas we have,and need for a stable society, first the mechanisms of morality (principles, rules,feelings and dispositions), second "the formulation and authoritative statement of laws", and third the routine enforcement of those laws; and we need these to be inreasonable harmony with each other.
The law and morality in the broad sense
It is when we move from this comparatively uncontentious central core to issues thatbelong only to morality in the broader sense that serious problems arise. We canpostulate contexts in which this extension is itself unproblematic: a society in whichthere is consensus on broader issues and in which there is virtually no hypocrisy. Ileave it to others to indicate whether any such contexts can be found in humanhistory. What we certainly do find, and the context in which we certainly are living,is rather different in these two ways that Mackie picks out: there are different,incompatible preferred ways of life, and "there is often a discrepancy between themorality to which people pay lip service and that which they seriously prescribe tothemselves" (p. 234).On the first issue, of incompatible preferred ways of life, it might be pertinent, andrelevant to the regional scene, to make a distinction Mackie overlooks between theconditions of a benign "plural" society and those of a society where groups not onlyadopt incompatible codes of conduct but also think each other seriously deficientbecause of this. (This may well be the condition of an explosive plural society —many cultures have traditionally been hostile to outsiders. It is also noteworthy thatin many cases the moral hostility is overwhelmingly one-way: many people detest ahomosexual way of life, but homosexuals need not condemn heterosexuality forothers; prostitutes do not need to think that sex within marriage is wicked.)
One solution, typical of benign plural societies, is to have a multiplicity of legalsystems corresponding to the various segments within it. So Muslims follow Muslimconventions regarding marriage, inheritance, etc., and the legal system enforcesthese in that segment of the community; Hindus likewise follow their conventions;and so on. One may need ways of dealing with problems created at the interfacebetween communities, but there is nothing in principle to prevent one finding them.The more awkward case is where the ways of life are not only incompatible butmutually (or in one direction) condemnatory. These are typically ways of life withinwhat in some respects sees itself (or is seen by prominent segments within it) as onecommunity (cf. Mill's remark that while some of his audience might have no seriousobjection to Muslims [assumed to belong to a different racial group] practisingpolygamy they might feel very differently about some of their own embracingMormonism and doing likewise).As a wild but not I hope unfounded generalisation about the history of law, what wefind is that the morality in the broad sense (preached and/or practised) of someamong the dominant segments of a society has very often infused the law. With agrowing realisation of the contrast underlying Mackie's narrow/broad conceptions of morality, there is a tendency for the law to be liberalised in the direction of allowingpeople with divergent values to live and let live, rather than for some to be becondemned and legally sanctioned.
The legal enforcement of morality
This tendency, and the arguments surrounding it, can be clearly seen in the 1957Wolfenden Report in the UK (The Report of the Committee on Homosexual Offencesand Prostitution), and the debate on its approach between Lord Devlin (beginningwith a 1959 lecture, reprinted as chapter 1 of 
The Enforcement of Morals
) andProfessor Hart (notably in the 1962 lectures published as
Law, Liberty, and Morality 
).Devlin quotes the Report's account of the function of the criminal law: "to preservepublic order and decency, to protect the citizen from what is offensive or injurious,and to provide sufficient safeguards against exploitation and corruption of others,particularly those who are specially vulnerable because they are young, weak in bodyor mind, inexperienced, or in a state of special physical, official or economicdependence" (para. 13, in Devlin, p. 2). It sees the importance of individual freedomof choice and action in matters of private morality as far outweighing any wish toequate crime with moral wickedness, so private morality should not be the law'sbusiness (a notion obviously close to the ideas of Mill we have already met).Devlin argues that a society requires a public morality: "what makes a society of anysort is community of ideas, not only of political ideas but also ideas about the way itsmembers should behave and govern their lives" (p. 9). One of his main examples ismarriage, where he says a society has to choose monogamy or polygamy and cannothave both. "The institution of marrriage would be gravely threatened if individual judgements were perrmitted about the morality of adultery; on those points theremust be public morality" (p. 10 — note, though, that he admits that adultery is not acrime and later agrees that it ought not to become one). A consequence, he says, isthat "society is justified in taking the same steps to preserve its moral code as itdoes to preserve its government and other essential institutions" (p. 13).
Devlin goes on to accuse the Report of inconsistency in its acceptance on the onehand that certain things are wrong and yet on the other that the law should refrainfrom direct action, except in cases of corrupting the young or exploitation. Oneinstance concerns the Report's endorsement of laws against ponces although theReport itself admits that typically they no more exploit prostitutes than any otheragent exploits his clients. "If the exploitation of human weakness is considered tocreate a special circumstance there is virtually no field of morality which can bedefined in such a way as to exclude the law" (p. 12). Devlin gives other instances of the law, and not merely Wolfenden's recommendations, becoming distorted by tryingto serve purposes for which it is not intended — the severe punishment then given toabortionists because illegal abortions were dangerous, and dangerous because theywere illegal (p. 24).Hart responded to Devlin by accusing him of confusing the true claim that a societyhas some moral beliefs in common with the false one that a society is strictlyidentical with its entire morality at a point of time, so that any change in moralitydestroys it. Devlin reasonably replies (footnote, p. 13) that he did not suggest thatthere could be no change, merely that some matters went deep enough to constitutethe lines of the tolerable for a group of people. He admitted, even, that the limits of the tolerable itself do change (p. 18). I think that the Mackie contrast may indicate away to distinguish the relative importance of different elements in a society's moralcosmos; what one wants to say to Devlin is that the degree of outrage felt forhomosexuality is disproportionate to its role in a social formation — it is evident wecan live and let live here. Again, he overemphasises the importance of consensus onone particular form of marriage in a society: plural societies manage with several,and several societies are arguably moving towards what one might call thedisestablishment of marriage altogether (for my remarks on the desirability of such amove, see aconference paperwith that title). My own view, with benefit of fortyyears' hindsight, is that Devlin was overhasty in identifying the strength of popularsupport for elements of his supposed public morality and blind to the possibility thatgay men, for instance, would wish to endorse their own way of life, and that thingscan go on quite nicely when they do so. (Of course, controversy continues, andinconsistencies abound.)
Note that the argument cannot be simply "a group of people can survive and flourish with a certain number of them doing X, so there need be no law against X" since that is true if X is murder, rape, theft, etc. It is, rather,"once everyone's fundamental rights to progressively choose how to live have been assured by lawscorresponding to the core of morality, some can pursue X, others Y, and there need be no law restricting theirfreedoms here."
Functionalism and the conditions for the continuing identity of a society
Before moving on, it may be worth while to notice a general difficulty in identifyingenduring institutions such as societies. We can make the point by contrasting thereality of social life with a popular picture, summed up elegantly in Shakespeare's
by the Senator, Menenius:There was a time when all the body's membersRebell'd against the belly, thus accused it:That only like a gulf it did remainI' the midst o' the body, idle and unactive,Still cupboarding the viand, never bearingLike labour with the rest, where the other instruments

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