The Hart Devlin Debate:

Introduction

The Overarching question is:

• Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law? Is it morally permissible to enforce morality as such? Ought immorality as such to be a crime?

JS Mill:

• No, “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others” His own good, either physical or moral is not a sufficient warrant”

• Critics: “No man is an island” This is illusionary, there are good reason to punish immortality even if it does not harm others.

Hart: • Should not enforce morality. Does not defend all of what Mill says, there are many grounds

justifying legal coercion of individual other than prevention of harm, but on narrow issue relevant to enforcement of morality Mill seems to be right.

Background to the debate

Hart points out that in the last few years there has been revival of legal moralism, especially when it comes to sexual offences. Shaw v DPP (Date: ) which affirms that conspiracy to corrupt public morals is a common law offence. Lord Simonds said “there is power to superintend those offences which are prejudicial to public welfare.”

The Wolfenden Committee the in 1954 set report with goal to “Drive prostitution off streets”. It is of note that the main idea was to suppress the offensive public manifestation and not make it illegal itself.

Lord Devlin was asked to right a contribution, at first he thought he was sympathetic to Mill's view but the “study destroyed instead of confirmed the simple faith in which I had begun my task” and he ended with conviction that these ideals were not only questionable, but wrong. He echoes James Fitzjames Stephen, “law should be a persecution of the grosser forms of vice.”

“...looking at it calmly and dispassionately, we regard it as advice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we

live, I do not see how society can be denied the right to eradicate it.” - Lord Devlin

Lord Devlin's Argumentation.

Lord Devlin's first Argument:

(1) Some morals we apply privately, some we impose on others (religion v monogamy). Society cannot survive unless some standards are of the second class, because some moral conformity is essential to its life. Every society has a right to preserve its own existence, and therefore the right to insist on some such conformity.

(2) Since society has such a right, it can avail itself of its institutions and criminal law to protect that right.

(3) Society shouldn't punish every immorality. Most important restraining principle must be toleration of maximum individual freedom that is consistent with integrity of society. But if none of the restraining principles apply, and the intolerance and indignation levels are reached, society has right to eradicate it.

Hart's Criticism: No Evidence

Proposition that it is justifiable to enforce morality is, like its negation, a thesis of critical morality requiring for its support some general critical principle. Lord Devlin's general critical principle: that a society has right to take any step necessary for its preservation – is inadequate for his purpose. There is NO EVIDENCE that preservation of a society requires enforcement of its morality “as such”.

Devlin's response:

“I do not say that any deviation from society's shared morality threatens its existence. I assert that it is capable in their nature of threatening the existence of society so that it cannot be put outside reach of law.”

Nabil: This reply exposes flaw in Devlin's argument. - tells us that the second step of the argument (that society has right to enforce public morality by law) as limited to a denial of the proposition that society never has such a right. His argument merely then says that there should be no jurisdictional barrier between private sexual practices and law's scrutiny.

Dworkin's Critisms:

1. How should we ever know when danger is sufficiently clear and present to justify not merely scrutiny but action?

2. All we really need is passionate public disapproval. 3. Criticism: Between (2) and (3) there is intellectual sleight of hand – in 3, 2, becomes itself a

dispositive affirmative reason for action, so that when it is clearly met the law may proceed without more. ◦ e.g If society hates homos enough, justify to outlaw it. But doesn't offer evidence that

homos present any danger at all to society's existence, beyond the claim of 'all deviations from a society's shared morality are capable in their nature of threatening the existence of society and so cannot be outside the law.'

Lord Devlin's second Argument: Communities Act on their Own Light

(1) Environment we live in and our children grow up in is determined, inter alia, by patterns and

relationships formed privately and by others than ourselves, so homosexuality has potential to undermine position of the family, the natural institutions around with our economic and social life is built.

(2) 1 alone not give right to society to prohibit homosexual practices. But it means that our legislators must decide some moral issues. Must decide if institutions which seem threatened (like family) are sufficiently valuable to protect at the cost of human freedom. And they must decide whether practices which threaten that institution are immoral, because if so then the freedom of a person to pursue them counts less.

(3) But how can legislator decide whether homosexual acts are immoral? Well, if it happens that vast amount of community agrees, then legislator has duty to act on the consensus.

(a) democratic principle satisfied(b) After all, it is community which acts when threats and sanctions of criminal law are brought to bear. Community must take moral responsibility, and it must therefore act on its own lights – i.e, on moral faith of its members.

Hart's Critism: Moral Populism and Democracy:

Lord Devlin and Stephen make fatal mistake in thinking that when popular morality is supported by an overwhelming majority or marked by widespread intolerance that loyalty to dem principles requires him to admit that its imposition on a minority is justified. Where Mill would protect the minority from coercion by majority, Lord Devlin's principles would expose them to it.

Dworkins Criticism The idea of a 'Moral Position':

Devlin's conclusions are not valid even on his own terms because he misunderstands what it is to disapprove on moral principle

Devlin speaks of the disapproval of the community's morality of a vice so abominable that its mere presence is an offence. Problem is that Devlin uses 'moral position' in an anthropological sense: because the source of the community's morality may be parroting, prejudice, emotional reaction, or rationalization. Instead, the legislator must conduct his own investigation and once he finishes the process, e.g., with homosexuality, he finds that it is not made out to be such an abomination **So, what is wrong with Devlin's second argument is not that morality counts, but his idea of what counts as the community's morality!

Pornography Example

Good Examples of Dworkin's point is the prohibition of obscene books. Why? Could offer reason like Lord Devlin's second argument, ie, whole tone of community would change if allow distribution of like (like bad morning milk) and vulgarity will become acceptable. Thus we need law to protect us from that. The problem with brining in the 'democratic disapproval' idea, is that at one point in the “the deterioration of community standards, the majority will not object to further deterioration, but that is a mark of the corruption's success, not proof that there has been no corruption at all.”

In essence, those who claim moral consensus against porn must provide evidence that this exists. Evidence in form of moral reasons which average member of society might sincerely and consistently advance in manner we have been describing. Maybe it can be done, but no substitute to simply say that ordinary man “turns his thumb down on the whole business.”

Specific Examples offered by Devlin and Hart's Response

1) Devlin points out that many crimes (except rape) consent immaterial and Devlin thinks the reason is that law enforces a moral principle

Hart's response: Can also explain it by paternalism (modifies Mill's theory here): e.g law against drug selling, surely not just immorality, but also protection against yourself. But we must generally move away from idea that if it's not paternalism, it must be morality.

Specific Examples by James Fitzjames Stephen and Hart's response

Claims and criticism of “The Extreme Thesis”:

1. The value of coercion, is easy to see of Murder, but if no one harmed and no victim, is it worth curtailing people's freedom?

2. There is value in enforcement of morality , even if immoral acts harm no one directly, or indirectly by weakening the moral cement of society.

3. Self-discipline not to masturbate certainly part of good life, but what is valuable is the voluntary restraint, not submission to coercion. Much morality is taught without fear of punishment, and where taught with it, danger that the fear of punishment may remain sole motive for conformity.

4. Value of punishment? Makes sense if there is a victim, but if no victim? Stephen then says that punishment should reflect revulsion of immoral act, but this rests on a strange amalgam of ideas. At expense of human suffering it pursues the mere expression of moral condemnation. Why aren't words, the normal form of condemnation, enough?

Claim: Criminal law was persecution of grosser forms of vice and not just instrument for prevention of harm:When asking how severely offender should be punished, an estimate of degree of moral wickedness involved in crime is always relevant. Which is why when we can show moral guilt diminished, punishment is usually diminished.

Harts response: Blends the question “what is justifiably punishable” with “how severe should we punish different offenses”. Also, there are many other reasons we may wish to scale and gradient the severity. All this tells us at best is about theory of punishment. Otherwise, we cannot pursue single value of moral aim untroubled by need to compromise with others.

Hart's third point: Bigamy

Curiosity about it: bigamy is illegal (Lord Devlin does not list bigamy), but sexual cohabitation not. According to Lord Devlin's reasoning, it ought to be. But this shows that in reality law is concerned not with immorality, but the public nuisance that bigamy creates. T

Thus, this example shows the need to separate immortality and public offensiveness. ◦