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Law without
morality, said Devlin “… destroys freedom of conscience and
is the paved road to tyranny”. Devlin appealed to the idea of
society's "moral fabric." He argued that the criminal law must respect and
reinforce the moral norms of society in order to keep social order from
unravelling.
"Societies disintegrate from within
more frequently than they are broken up by external pressures. There is
disintegration when no common morality is observed and history shows
that the loosening of moral bonds is often the first stage of
disintegration, so that society is justified in taking the same steps to
preserve its moral code as it does to preserve its government... the
suppression of vice is as much the law's business as the suppression of
subversive activities."
Devlin, "The Enforcement of Morals" (1959)
Devlin’s view
was that any category of behaviour was capable of posing a threat to
social cohesion. Therefore, morals laws are justified to protect
society against the disintegrating effects of actions that undermine the
morality of a society.
This social cohesion
argument, i.e. the notion of a shared morality was he said necessary for
the survival of society. However, what is not clear is what “society” is
and whether society's views are always correct.
Devlin argued
that immorality is what every right-minded person considered immoral.
Devlin argued that there could be no theoretical limit to the reach of
law; no acts are “none of the laws business”. (Margaret
Thatcher
once declared, "There's no such thing as society, there are individual men
and women and there are families.")
Devlin suggested that the common
morality could be discerned by asking
"What is acceptable to the ordinary
man, the man in the jury box, who might also be called the reasonable
man or the right minded man"
Devlin chose the man in the jury box
because;
a) The verdict of a jury (twelve men and women) must be unanimous (at the
time he was writing)
b) The jury will only reach its verdict after the issue has been fully
examined and deliberated.
c) The jury box is the place where the ordinary person's conception of
morality is enforced.
Devlin "The Enforcement of Morals" (1959)
Devlin's guidelines
Privacy should be
respected.
Law should only
intervene when society won't tolerate certain behaviour.
Law should be a
minimum standard not a maximum standard.
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