There has been an exchange between Hart and Devlin over the question: ´Whether or not law should enforce morality?µ € The arguments are marshalled by Hart in his book, ´Law, Liberty and Moralityµ. € Hart seems to be under the influence of J.S. Mill and his thesis ´On Libertyµ. € On the other hand, Devlin·s arguments are found in his book, ´The Enforcement of Moralsµ. € He seems to be influenced by J.F. Stephen and his book, ´Liberty, Equality and Fraternityµ. € The commentators support one of the other of the viewpoints of the debaters.

In 1954, a committee was set up with J.F. Wolfenden as its chairman. € In 1957, the Wolfenden committee submitted its report on homosexuality and prostitution. € ´Unless a deliberate attempt is to be made by society, acting through the agency of law, to equate the sphere of crime with that of sin, there must remain a realm of private morality which is, in brief and crude terms, not the law·s business. To say this is not to condone or encourage private immorality. € ´It is not the duty of the law to concern itself with immorality as such« it should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive or injurious.µ

by the Sexual Offences Act 1967. 145) on Offences Against Religion and Public Workshop. recommended complete abolition of the common law offence. . the committee recommended that homosexuality between adults who give consent and commit this in private. it would seem. In 1985. but its public displays should be curtailed.€ € € € € € € Consequently. should no longer be treated as a criminal offence. also recommended that the pornographic material should not be totally banned. cannot be justified. the Law Commission Report (No. the tenets of the Church of England. the limitation of the offence to the protection of Christianity and. accordingly. It was implemented with regard to adults over 21 years. In 1976. These were the arguments which were capitalized by Hart.µ It. concluded: ´«in the circumstances now prevailing in this country. the Williams Committee on Obscenity.

€ In this case. known as Ladies Directory Case. € On appeal to the House of Lords. ƒ Publishing an obscene article. Shaw was charged and found guilty of three offences. € . the question to be decided was whether the courts possessed moral jurisdiction. ƒ Conspiring to corrupt public morals by means of the directory.On the other hand. ƒ Living on the earning of the prostitutes who paid for the advertisement. support arguments by Devlin. Shaw v DPP.

to superintend those offences which are prejudicial to the public welfare.µ € . he was asserting.µ € Lord Reid observed: ´Notoriously there are wide differences of opinion today how far the law ought to punish immoral acts which are not done in the face of the public. as I now assert. Parliament is the proper place and.Viscount Simmonds stated: ´When Lord Mansfield« said [in R v Delaval (1973)] that the Court of King·s Bench was the custos morum (guardian of morals) of the people and had the superintendency of offences contra bonos mores (against good behaviour). some that it does not go far enough. I am firmly of opinion. Some think the law already goes too far. that there is in that court a residual power. where no statute has yet intervened to supersede common law. the only proper place to settle that.

€ The House of Lords declared itself as the Reeper and protector of the morals of the nation. and upheld Shaw·s conviction. € In fact the debate between Hart and Devlin whether or not the law should enforce morality was sparked off mainly by the publication of the Wolfenden Committee Report and the decision in Shaw v DPP. .

That the only purpose for which power can be rightfully exercised over any member of a civilized community.µ .µ € ´That principle is.€ ´The object of this essay is to assert one very simple principle. that the sole end for which mankind are warranted (individually or collectively. or the moral coercion of public opinion. against his will. whether the means used be physical force in the form of legal penalties. in interfering with the liberty of action of any of their number) is selfprotection. as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control. is to prevent harm to others.

In the part which merely concerns himself. Over himself. He cannot rightfully be compelled to do or forbear because it will be better for him to do so. in the opinion of others. is not sufficient warrant. either physical or moral. for which he is amenable to society. to do so would be wise. the individual is sovereign. because. over his own body and mind. of right. is that which concerns others.µ . his independence is. because it will make him happier. absolute.€ ´His own good. or even right«µ € ´The only part of the conduct of anyone.

official or economic dependence. particularly those who are specially vulnerable because they are young. or in a state of special physical. inexperienced. to protect the citizen from what is offensive and injurious.€ The function of criminal law is to preserve public order and decency. and to provide sufficient safeguards against exploitation and corruption of others. . weak in body or mind.

.€ € € € € Devlin discusses the question: ´What is the connection between crime and sin and to what extent. Devlin posed 3 subsidiary questions: First question: Has society the right to pass judgments at all on matters of morals? Ought there« to be a public morality. or are morals always a matter of private judgment? Answer: Devlin believes that there is always something as public morality. Morals are not a matter to be judged by private opinion and the society has a right to judge matters of morals. if at all. should the criminal law of England concern itself with the enforcement of morals and punish sin and immorality as such?µ In answering this question.

Second question: € If society has the right to pass judgment. . has it also the right to use the weapon of the law to enforce it? Answer: € Devlin·s answer here is that society does have such a right due to two reasons: (a) ´a recognized morality is as necessary to society as a recognized governmentµ. (b) ´society may use the law to preserve morality in the same way as it uses it to safeguard anything that is essential for its existenceµ.

€ Devlin adopts the view of Pollock on what is called ¶practical morality· ² that based not on philosophical or theological foundations but ¶in the mass of continuous experience halfconsciously or unconsciously accumulated and embodies in the morality of common sense·. the law is not looking for ¶true belief· but ¶common belief·.At this point Devlin steps aside to consider an additional question: Additional Question: € How are the moral judgments of society to be ascertained? Answer: € Answer: Immorality ¶for the purpose of the law is what every right minded person is presumed to consider to be immoral·. € . € So in determining the content of public morality.

Devlin believes. € Nevertheless. and if only in some.Third question: € If the society has the right to used the weapon of the law to enforce morality. certain principles that the legislature should bear in mind when it is considering the enactment of law that enforce morals. ¶ought it use that weapon in all cases or only in some. there are. . on what principles should it distinguish? Answer: € Devlin recognizes that a citizen cannot be expected to surrender to the judgment of society the whole conduct of his life.

indignation and disgust.1. the feelings of society cannot be weighty enough to deprive the individual of freedom of choice. .  No society can do without intolerance.  However. before a society can put a practice beyond the limits of tolerance. there must be a deliberate judgment that the practice is injurious to society. There should be toleration of ´the maximum individual freedom that is consistent wit the integrity of society« Nothing should be punished by the law that does not lie beyond the limits of tolerance. and indeed it can be argued that if they or something like them are not present.µ  But not everything is to be tolerated. they are the forces behind the moral law.

.2. The limits of toleration shift.   By this Devlin does not mean that the standards of morality of any society shift (¶at any rate so far as they come from a divine source they do not·). For this reason the law should be slow to intervene in the sphere of morality. because what may not be tolerated in one generation may come to be tolerated in the next ² ¶the swell of indignation having abated. leaving the law without the strong backing that it needs·. but at ¶the extent which society will tolerate (not approve) departure from moral standards varies from generation to generation.

  By this Devlin does not mean that the standards of morality of any society shift (¶at any rate so far as they come from a divine source they do not·). but at ¶the extent which society will tolerate (not approve) departure from moral standards varies from generation to generation. . leaving the law without the strong backing that it needs·. As far as possible privacy should be respected. For this reason the law should be slow to intervene in the sphere of morality.3. because what may not be tolerated in one generation may come to be tolerated in the next ² ¶the swell of indignation having abated.

In reaching the judgment the principle must be that the law·s proper purpose is the protection of society. there are no hard and fast rules. The law should not stop here. It is with regard to the purpose of the law that Devlin believes that the thinking of the Wolfenden report is mistaken. Each instance must be considered separately and a judgment reached after taking into account the three matters he has stated.€ € € € € € The answer to the third question (´ought the law enforce morality in all cases or only someµ) is thus that. . The error of the report is that is finds that the ¶single principle to explain the division between crime and sin is that the criminal law exists for the protection of individuals·.

annoyance. political and moral. not political alone but also ideas about the way its member should behave and govern their lives. . corruption and exploitation.€ € ¶The law does not discharge its function by protecting the individual from injury. the law must protect also the institutions and community of ideas. without which people cannot live together« What makes a society is a community of ideas.· It is society in this form that it is the proper function of the law to protect.

It is society in this form that it is the proper function of the law to protect. if it is not. In deciding in specific cases whether moral wickedness should be punished. The law should enforce morals in those circumstances in which this is necessary for the preservation of the society. . the ¶legislator· must gauge the intensity with which a popular moral conviction is held. then it is right that it should be prohibited by law since.€ € € € € In summary form. Its moral standards are the standards of conduct of which the reasonable man approves. indignation or disgust. Lord Devlin·s argument is thus that a society·s morals are part and parcel of that society. because it is only when the obverse is generally thought to be intolerable that the criminal law can safely and properly be used. moral judgments might be confused as a result of people seeing moral wickedness going unpunished ² thereby bringing law into disrepute ² with a consequent weakening of the society. Where any matter is regarded with intoleration.

. For Stephen the preservation of morality is an end in itself and one that justifies legal enforcement. or indirectly by weakening society.€ € € A significant difference between the position of Stephen and that of Devlin has been pointed out by Professor Hart. of which a shared morality is an integral part. For Devlin the law should enforce morality as a means of protecting the fabric of society. irrespective of the fact that immoral acts harm no one directly.

. of which a shared morality is an integral part.€ € € A significant difference between the position of Stephen and that of Devlin has been pointed out by Professor Hart. irrespective of the fact that immoral acts harm no one directly. For Stephen the preservation of morality is an end in itself and one that justifies legal enforcement. or indirectly by weakening society. For Devlin the law should enforce morality as a means of protecting the fabric of society.

the law against bigamy should be accepted as an attempt to protect religious feelings from offence by public act desecrating the ceremony. Liberty and Moralityµ published in 1962. . Some people may consider that ¶in a country where deep religious significance is attached to monogamous marriage and to the act of solemnizing it. He cited bigamy as example..€ € € € € Professor HLA Hart criticized Lord Devlin·s views in his book ´Law. Before setting out inn his arguments against Devlin thesis. Hart raises no objection to the law prohibiting immoral acts on the ground that the commission of the act causes an offence to others of a degree that turns the matter into a public nuisance. Hart makes points.

€ . but on the grounds of nuisance. is dealing with the offensiveness to others of the bigamist·s public conduct. € This is because the law. the bigamist should be seen to be punished. € Because of the element of the public nuisance involved in bigamy. not the immorality of the conduct.Hart does not reject this contention but maintains that it is important that. in proscribing bigamy. not as being irreligious or immoral. although the law is intervening in order to protect religious sensibilities from outrage by a public act. the offensiveness to others is the law·s proper concern. € Thus the ¶example of bigamy shows the need to distinguish between the immorality of a practice and its aspect as a public offensive act or nuisance·.

. about immoral acts that are done in private? It could be argued that such acts should be forbidden by law by virtue of Mill·s principle that coercion is justified to prevent harm to others. and the only liberty that could coexist with this « is liberty to do those things to which no one seriously objects.€ € € € € But what. and the rejection lies at the core of his argument. ¶To punish people for causing this form of distress would be tantamount to punishing them simply because others object to what they do.· This is the kernel of Hart·s thesis: we have a right to be protected against shock or offence to feelings by some public display. the harm in this case being the distress caused to others by the thought of what is being done behind closed doors. Hart turns to consider. Hart rejects this view.

· . cannot be acknowledged by anyone who recognized individual liberty as value.€ But we have no right to be protected from distress caused by knowing that certain things are done in private. € A right ¶to be protected from the distress which is inseparable from the bare knowledge that others are acting in ways you think wrong.

is something which. This is no more than an assumption: ¶«no evidence is produced to show that deviation from accepted social morality. As a proposition of fact it is entitled to no more respect than the Emperor Justinian·s statement that homosexuality was the cause of earthquakes.· . and there is indeed much evidence against it. First he challenges Devlin·s views that offences against the moral code weaken a society. threatens society. even by adults in private.€ € € € € In support of this thesis. Hart proceeds to make certain supplements points. No reputable historian has maintained this thesis. like treason.

. so that a change in its morality is tantamount to the destruction of a society.€ Hart says that Devlin.· € The former proposition might be accepted but the latter is ¶absurd·. ¶moves from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history.

€ ¶Taken strictly.· . it would prevent us saying that the morality of a given society has changed. and would compel us instead to say that one society had disappeared and another one taken its place. € But it is only on this absurd criterion of what it is for the same society to continue to exist that it could be asserted without evidence that any deviation from a society·s shared morality threatens its existence.

but simply as something called for by the wickedness of a crime.€ € € € € Next. Hart turns to the means of enforcement: coercion. he says. and there is both wrongdoer and a victim· ² when it is felt ¶that it is right or just that one who has intentionally inflicted suffering on others should himself be made to suffer·. .· If the threat of coercion does not teach people to behave morally. and perhaps only intelligible. there is the standing danger that fear of punishment may remain the sole motive for conformity. There is. justification for coercion could be sought in the retributive theory of punishment ² that punishment is the appropriate return for the evil committed. Much morality is certainly taught and sustained without it. where the crime has harmed others. is certainly most plausible. But a ¶theory which does not attempt to justify punishments by its results. ¶little evidence to support the idea that morality is best taught by fear of legal punishment. and where morality is taught with it.

But the basis of the thinking is dependent on there being a victim as well as an offender. € Where. € € ¶Retribution (where the offence harms others) here seems to rest on nothing but the implausible claim that in morality two blacks make a white: that the evil of suffering added to the evil of immorality as punishment makes a moral good·. as in the case of an immoral act committed in private. there is no victim but only a transgressor of a moral rule. the view that punishment is still called for lacks a valid basis. .

€ Hart says. not so much to gratify feelings of hatred or revenge as to express in emphatic form moral condemnation of the offender and to ´ratifyµ the morality which he has violated·. punishment can be justified on the ground that it has value as denunciation. Stephen ¶sometimes writes as if the function of punishment were not so much retributive as denunciatory. .€ Next Hart considers the view that apart from any justification that can be found for the punishment of immorality on the grounds of retribution.

it contributes nothing to the survival of the animating spirit and formal values of social morality and may do much to harm them·. a process that is curtailed or at any rate inhibited by the enforcement of the existing code by legal sanctions. But the moral code of any society changes with time.€ € € Those who believe that the law should properly fulfill this denunciatory function in reality are saying that the law should act to instill and strengthen respect for the moral code. ¶The use of legal punishment to freeze into immobility the morality dominant at a particular time in a society·s existence may possibly succeed. but even where it does. following the process of discussion and self-criticism. .

therefore. € Devlin is in error since ¶there is no evidence that the preservation of a society requires enforcement of its morality ´as suchµ·.€ Hart·s argument is. that the view put forward by both Stephen and by Devlin are equally weak. . € Stephen is in error since to ¶use coercion to maintain the moral status quo at any point in a society·s history would be artificially to arrest the process that gives social institution their value·.

€ But this should be achieved by discussion. € The price of seeking to impose adherence to moral values by legal sanctions in terms of human misery and the loss of freedom is too high. € The use of coercion to secure compliance with a moral code involves elements that are contrary to the spirit of moral value ² enforcing conformity through fear. gratification of feelings of hatred by retributory punishment. not by legal coercion. and the insulation of a society from modification in its moral values.Professor Hart does not dispute that members of a society should be encourage to abide by its moral standards. € . advice and argument. infliction of punishment as a symbol of condemnation.

it is a mixed up legal moral and political question. followed by Devlin. will decide which viewpoint is taken. € On this question. € The commentators are divided into two camps. followed by Wolfenden Committee. € . € Enforcers· camp. € Anti-enforcers· camp. headed by Mill. € There are different views in this regard and the relationship of the state to that of the person. and Hart. there is a division of opinion. headed by Stephen.Whether law should enforce morality.

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