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Hart-Devlin Debate

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Hart-Devlin Debate

 

The issue of legalising of homosexuality and prostitution was investigated by the Wolfenden Committee headed by Sir John Wolfenden.  The Report claimed that it is not the duty of the law to concern itself with immorality. Professor Hart, and Patrick (later Lord) Devlin (Law Lord) contributed to the debate.

 

It was argued that homosexuality should be decriminalisation on the basis of:

1) Freedom of choice

2) Privacy of morality

 

Devlin’s position

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.

 

Hart’s position

Hart warned against the dangers of “populism”.  Why should the conventional morality of a few members of the population be justification for preventing people doing what they want?

This is based on the theory that most people's views are coloured by superstition and prejudice.

 

Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes in basic moral views. It is absurd to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another.

 

Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused on the majority rule. Harts is more humanistic and individual.

 

Dworkin

Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate of Liberties.  If a behaviour is a Basic Liberty (like sex), this should never be taken away, even if someone has a different way of 'doing' sex e.g. R v  Brown (The Spanner Case)  General liberties could be restricted if they cause harm.  But, it is not clear how you tell the difference between a basic and a general liberty?

 

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