DEC 2015 PART B Q1

Hart – Devlin debate

The Wolfenden Committee Report on Homosexual Offences and Prostitution appeared in 1957
and recommended changes in the law; some of the recommendations became the basis of the Sexual
Offences Act 1967, decriminalising certain homosexual practices in specified circumstances. Intense
debate followed, producing points of view which tended to polarize around the arguments stated by
Hart and Lord Devlin. The philosophy of the Wolfenden Report was based upon the following theses: -
The function of the criminal law was to preserve public order and decency, to protect the citizen from
what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of
others. - To say that a crime is ‘an act punished by the State’ does not explain what a crime is as
distinguished from a ‘sin’. - So unless a deliberate attempt is to be made by society, acting through the
agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private
morality and immorality which is not the law’s business.

Devlin, who had shown himself to be in favour of easing the penalties for some homosexual
crimes, rejected the basic philosophy of the Wolfenden Committee Report. The criminal law of England
has from the very first concerned itself with moral principles. The smooth functioning of society and the
preservation of order require that a numb of activities should be regulated (Knuller v DPP) Hart, who in
subsequent debate tended to focus on the individual rather than on the society, rejected Devlin’s
approach and argued that it is not morally permissible to enforce the tenets (views) of morality. He drew
particular attention to the flaws in Devlin’s argument that those who deviate from conventional sexual
morality might be in other ways hostile to society. Devlin states that, until now, the criminal law has
been based upon certain standards of behaviour or moral principles which society requires to be
observed, and that their breach is an offence not merely against the person who is injured, but against
society as whole. Devlin poses three questions, to which the answers given constitute the essence of his
stance against the philosophy of the Wolfenden Committee Report.

Hart argued that the basis of Devlin’s sayings was unsound. ‘Legal moralism’ – the justification
for attempts to prevent conduct which is perceived as immoral even though no person is harmed – had
to be questioned. Hart believes that there exists a right to be protected against any offence to our
feelings by some public demonstration of an immoral act. But there is no right to be protected from
distress caused by the knowledge of acts done in private. Devlin’s concept of morality as a single
seamless web was an unacceptable viewpoint. Single breaches of morality do not necessarily affect the
integrity of society in its entirety. Devlin’s comparison of the suppression of seditious activity and the
suppression of sexual morality was used by Hart to illustrate the inadequacy of that approach to the
problem.

Hart argues that the legal punishment which followed on sexual misdemeanor could, and often
did, result in disproportionate personal misery. Blackmail and other evil consequences of a finding of
guilt often outweigh any harm said to have been caused directly by homosexual offences. Devlin puts
forward as the criterion for the immorality of a deviant sexual practice, the disgust it will produce in the
mind of the right-thinking man. However, Hart says, legislators must ask what is the precise nature of
the so-called general morality which the right-thinking man is held to embrace.

Hart warns against the dangers which can result from the populism which Devlin advocates.
There is a special risk in a democracy that the majority may dictate how all should live. This is a risk we
should gladly run since it is a price for the many good features of democratic rule; but we ought not to
maximise the risk. Yet, this is exactly what will occur if we tell the reasonable man that ‘if only he feels
sick enough about what other people do in private to demand its suppression by law, no theoretical
criticism can be made of his demand.’