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THE HART/ DELVIN DEBATE, THE SUMMARY

A committee advising the British Parliament on homosexuality and prostitution headed Sir John Wolfenden
recommended in 1957 repeal of laws punishing homosexual conduct. The British Parliament enacted the
substance of the recommendation of the Report of the Committee on Homosexual Offenses and Prostitution 10
years later.
The Report claimed that it is not the duty of the law to concern itself with immorality. This sparked a debate
between two renowned jurists Herbert LA Hart and Patrick Delvin.

Delvins position
Harts position
1. He said Law without
1. He warned against the dangers of populism. Why should the
morality, said destroys
conventional morality of a few members of the population be
freedom of conscience and
justification for preventing people doing what they want?
is the paved road to
This is based on the theory that most people's views are coloured by
tyranny.
superstition and prejudice.
2. He appealed to the idea of
2. Hart reiterated Mill's "harm principle", Hart pointed out that
society's "moral fabric."
He argued that the
societies survive changes in basic moral views. It is absurd to
criminal law must respect
suppose that when such a change occurs, to say one society has
and reinforce the moral
disintegrated and been succeeded by another.
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)
3. Devlins 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.

4. 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.

5. 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.

6. 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"

7. 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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