Hart-Devlin Debate on µEnforcement of Morals¶

By Dr. Myint Zan ©

Different orientation of debate between Hart and Devlin Debate on µEnforcement of (public) morals¶ not on the Morality or Validity of µOppressive laws¶ as in HartFuller debate

In 1859 John Stuart Mill argued in On Liberty that society has no right to enforce its moral perceptions where their violation would not cause objectively verifiable harm to others Mill argued that, in the absence of harm, diversity is a positive factor to society which is dangerously inhibited by µmoral¶ repression

¶ . To say this is not to condone or encourage private immorality.Hart Devlin debate followed the publication of the Wolfenden Report : Report of the Committee on Homosexual Offences and Prostitution (1957) Excerpts: µ. there must be a realm (µarea¶) of morality which in brief and crude terms is not the law¶s business.. To equate the sphere of crime with that of sin.

Comparisons: in US only in 2003 with the US Supreme Court decision in Lawrence v Texas is private homosexual activity between adults no longer a criminal offence in all US states .As a result starting from 1967 in the UK homosexual conduct between consenting persons over 21 years old is no longer criminalized.

In Fiji¶s 1997 Constitution discrimination on grounds of µsexual orientation¶ is prohibited but the consensual homosexual relations among adults is still a µcriminal offence¶ Australia¶s Human Rights (Sexual Privacy) Act 1994 overrides Tasmanian Law which criminalizes homosexuality as a result of a UN Committee¶s ruling in the Toonen Case .

Lord Devlin took issue with some parts of the report that there are private areas of morality into which the law should not intrude Society rests upon the base of µshared morality¶ which can be legally defended exactly as a society may be defended from subversive action .

How is the µmorality¶ of a (certain) society to be determined for the purpose of its enforcement? Devlin seems to propose a µjury box¶ morality that of the average µrightminded¶ citizens (µmoral standards of behavior are the standards of behavior of a µreasonable man¶) .

However Devlin did not say that µevery immoral act¶ is to be prohibited by law. The law should enforce morals only in those conditions which is required for the preservation of society Hart¶s response to this was that (even in the context of UK and others even in the late 1950s) there is no such thing as broad and wide µshared morality¶ .

euthanasia. abortion. surrogate motherhood. Diverse views exist not only on matters of sex-morality but also on issues of capital punishment. withdrawal of life-sustaining treatment.Society is pluralistic. µamalgamation of tolerated moralities and not one shared morality¶. . (active and passive).

.by the Eighteenth Amendment to the US Constitution of the manufacture.One possible example of moral enforcement through a Constitutional amendment in the United States was the µProhibition¶. In 1933 the the Twenty-first Amendment repealed the Prohibition and the Eighteenth Amendment. in 1920. transport and sale of alcohol in the United States.

Difficulty of enforcement of (morality) through laws Compare one criteria in Fuller¶s inner morality of law that ³laws must be possible to obey´ Query: Can an extension of this argument be made. based on Prohibition lessons in the United States that (in the US) the use of say. (In the 1990s the US Supreme Court rejected that argument) . marijuana for medicinal purposes should not be criminalized.

industry-academy (University) cooperation which is touted as µunqualifiedly good¶ be challenged on moral and ethical grounds? . say.How about morality of gun control in the context of the United States? Can the arguments for and against guncontrol be made on moral grounds? On a less µlegalistic basis¶ can.

in some instances subsidized by cigarette companies .Two possible negative (immoral or unethical) examples of University and industry cooperation in Western Countries University medical research regarding the link between smoking and cancer was.

Bush. during his administration .In the 1980s billions of dollars were misspent by research into US President Ronald Reagan¶s µStar Wars¶ program supported by some academic funding now revived by former US president George W.

since certain moral issues are not all black or white. . Morality should not always be based on µmorality of the majority¶ since majority¶s morality could be wrong.In relation to Devlin¶s µpublic morality¶ as a µseamless web¶ Hart questioned whether it really is.

It could be argued that the persecution itself is immoral but can one also argue that the persecution may be based on allegedly µmoralistic¶ reasons? . homosexuals and disabled persons).If µpopular¶ morality is a basis for legal intervention and punishment then persecution of the µunpopular¶ could follow (my comments as an extreme example compare the Nazis¶ persecution of not only the Jews but also gypsies.

Hart criticized the judicial enforcement of certain morals as µjudicial moralism¶ .Devlin¶s equation of laws punishing µsubversion¶( in particular with treason) with those of laws punishing moral breaches has political undertones.

Hart criticized Shaw v Director of Public Prosecutions [1962] AC 220 quoting a 1774 decision by Lord Mansfield stating that the King¶s courts are µthe general censor and guardian of the public manners¶ I .

In the Shaw case conviction for publishing µfor the conspiracy to corrupt morals¶ of what would amount to a directory of prostitutes was upheld. Hart argues that law cannot (or should not) enforce morality through coercion as proposed or endorsed by Devlin Legal sanction is not the only or even effective disincentive from people doing allegedly immoral behaviour .

To be fair Devlin did not state that all morals should be given the imprimatur (µsanction¶) of law . The law should enforce morals only in those conditions which demand the preservation of society. . .

Devlin argues that in deciding whether to punish µmoral wickedness¶ the legislature must gauge the intensity with which a popular moral conviction is held only when the moral violations would become intolerable the criminal law can safely and properly be used. .

hypothetical or real) the following criminal laws : (a) prohibition against bigamy (b) prohibition against adultery .On the grounds of Devlin and Hart¶s arguments would any or both approve or disapprove (actual.

Gun lobby and many others assert a constitutional and moral right to own guns by individuals) and the maximum of death sentence in Malaysia for unauthorized individual ownership of guns .(c) prohibition against blasphemy (of only the Christian religion as it used to be in UK) and blasphemy in Pakistan? (d) varying gun control laws (US very lax.

(e) a hypothetical law (apparently nonexistent) in any country which criminalizes the manufacture. importation. and even the smoking of cigarettes .

Compare the µcultural relativism¶ debate in human rights law Can rights and morals be the same in all societies? Compare the prevailing practice of female genital mutilation on cultural grounds in certain African societies. .

. consensual homosexual acts were decriminalized in UK.Devlin or supporters of enforcement of morals in relation to the issue of homosexuality continue to argue that the majority view of morality still prevails in decided cases even after 1967 when adult.

In R v Bishop (1974) 2 All. 1206 it was held that an allegation of homosexuality was an imputation against character However in the 1990s a known homosexual was nominated and approved as a High Court Judge in Australia . ER.

Hart: Moral standards change and therefore even within the same society µmoral feelings¶ may not be spread out evenly Enforcement of morals may create more social evils than prevent them .

Hart asserts that (mainly in the context of Western societies) bigamy and polygamy can be prohibited by law not on moral but on µpaternalistic¶ grounds Hart argues that bigamy and polygamy should be prohibited because they are (a) ³affront to a public ceremony´ (b) throws the legal obligations of the parties into confusion (c) bigamist should be punished not for being µirreligious¶ or immoral but for being a nuisance .

Dias critiqued that if Hart would allow µpaternalism¶ in the case of polygamy and bigamy then why should the law not show paternalistic attitudes in other moral areas as well. .

Dworkin comments that Devlin¶s moralism or moralistic attitudes are evident in what Devlin considered to be µimmoral¶ µwhat is shocking and wrong is not his idea that community¶s morality counts but his idea of what counts as the community¶s morality¶ .

Hughes states If that is the case the morality here does not mean µshared morality¶ but rather the morality of a church group. .Many perhaps including some in the United States Supreme Court for example would consider Devlin¶s views on abortion is oldfashioned (now) when in the late 1950s Devlin stated that ³nowadays many people do not understand that abortion is wrong´: G.

Compare the comments in text (page 364) that ³Lord Devlin assumed a degree of moral solidarity in society which may have existed in earlier periods of our history which is hardly discernible today´ My Comment: But that statement or critique of Devlin would not be applicable at all to societies like Saudi Arabia where religiously determined moral rules constitute the whole fiber of law and may not be fully applicable to quite a few other non-Western societies. .

The issue of enforcement of morals is also related to what role the State plays in its relation with and regulation of the conduct of the individual. Hart who was critical of Devlin¶s views do not consider that Devlin is entirely a µmoralist¶ in the negative sense of the word but only critiqued Devlin¶s µmoderate moralism¶ concerning enforcement of morals. .

The lines to be drawn in relation to the enforcement of morals is difference between Devlin¶s philosophy (which has been described by McCoubrey and White as µmoderate moralism¶ -some like Ronald Dworkin may disagree.) and Hart¶s philosophy (which has been described as) µqualified liberalism¶ .Again as in the Hart-Fuller debate on the morality of oppressive and unjust laws Hart by no means deny the relevance or even in some cases the necessity for the enforcement of morals.

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