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THE HART-DEVLIN
DEBATE
FAIZNUR YAZREEN
NUR DIANA
ZARITH SATINA
LWB05F
BACKGROUND
There has been an exchange between Hart and Devlin
over the question:
“Whether or not law should enforce morality?”
The arguments are marshalled by Hart in his book,
“Law, Liberty and Morality”.
Hart seems to be under the influence of J.S. Mill and
his thesis “On Liberty”.
On the other hand, Devlin’s arguments are found in
his book, “The Enforcement of Morals”.
He seems to be influenced by J.F. Stephen and his
book, “Liberty, Equality and Fraternity”.
The commentators support one of the other of the
viewpoints of the debaters.
BACKGROUND
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.”
Consequently, the committee recommended that homosexuality
between adults who give consent and commit this in private,
should no longer be treated as a criminal offence.
It was implemented with regard to adults over 21 years, by the
Sexual Offences Act 1967.
In 1976, the Williams Committee on Obscenity, also recommended
that the pornographic material should not be totally banned, but
its public displays should be curtailed.
In 1985, the Law Commission Report (No. 145) on Offences Against
Religion and Public Workshop, concluded:
“…in the circumstances now prevailing in this country, the
limitation of the offence to the protection of Christianity and, it
would seem, the tenets of the Church of England, cannot be
justified.”
It, accordingly, recommended complete abolition of the common
law offence.
These were the arguments which were capitalized by Hart.
On the other hand, Shaw v DPP, known as Ladies Directory
Case, support arguments by Devlin.
In this case, Shaw was charged and found guilty of three
offences.
Publishing an obscene article.
Living on the earning of the prostitutes who paid for the
advertisement.
Conspiring to corrupt public morals by means of the
directory.
On appeal to the House of Lords, the question to be decided
was whether the courts possessed moral jurisdiction.
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), he
was asserting, as I now assert, that there is in that court a
residual power, where no statute has yet intervened to
supersede common law, to superintend those offences which
are prejudicial to the public welfare.”
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. Some think the law already goes
too far, some that it does not go far enough. Parliament is
the proper place and, I am firmly of opinion, 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.
JOHN STUART MILL, ON LIBERTY,
1859
“The object of this essay is to assert one very simple
principle, as entitled to govern absolutely the dealings
of society with the individual in the way of compulsion
and control, whether the means used be physical force
in the form of legal penalties, or the moral coercion of
public opinion.”
“That principle is, that the sole end for which mankind
are warranted (individually or collectively, in
interfering with the liberty of action of any of their
number) is self-protection. That the only purpose for
which power can be rightfully exercised over any
member of a civilized community, against his will, is to
prevent harm to others.”
JOHN STUART MILL, ON LIBERTY,
1859
“His own good, either physical or moral, is not
sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better
for him to do so, because it will make him happier,
because, in the opinion of others, to do so would be
wise, or even right…”
“The only part of the conduct of anyone, for which
he is amenable to society, is that which concerns
others. In the part which merely concerns himself,
his independence is, of right, absolute. Over
himself, over his own body and mind, the individual
is sovereign.”
THE REPORT OF THE COMMITTEE ON
HOMOSEXUAL OFFENCES AND
PROSTITUTION (THE WOLFENDEN REPORT
1957)
The function of criminal law is to preserve public
order and decency, to protect the citizen from what
is offensive and injurious, and to provide sufficient
safeguards against exploitation and corruption of
others, particularly those who are specially
vulnerable because they are young, weak in body or
mind, inexperienced, or in a state of special
physical, official or economic dependence.
ARGUMENTS OF DEVLIN
Devlin discusses the question:
“What is the connection between crime and sin and to what
extent, if at all, should the criminal law of England concern itself
with the enforcement of morals and punish sin and immorality as
such?”
In answering this question, 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.
ARGUMENTS OF DEVLIN
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 government”.
(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 existence”.
ARGUMENTS OF DEVLIN
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’.
Devlin adopts the view of Pollock on what is called ‘practical
morality’ – that based not on philosophical or theological
foundations but ‘in the mass of continuous experience half-
consciously or unconsciously accumulated and embodies in
the morality of common sense’.
So in determining the content of public morality, the law is
not looking for ‘true belief’ but ‘common belief’.
ARGUMENTS OF DEVLIN
Third question:
If the society has the right to used the weapon of the law to
enforce morality, ‘ought it use that weapon in all cases or
only in some; and if only in some, 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.
Nevertheless, there are, Devlin believes, certain principles
that the legislature should bear in mind when it is
considering the enactment of law that enforce morals.
PRINCIPLES
1. 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.”
But not everything is to be tolerated.
No society can do without intolerance, indignation and
disgust; they are the forces behind the moral law, and
indeed it can be argued that if they or something like them
are not present, the feelings of society cannot be weighty
enough to deprive the individual of freedom of choice.
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.
PRINCIPLES
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’), but at ‘the
extent which society will tolerate (not approve)
departure from moral standards varies from generation
to generation.
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 – ‘the swell of indignation having abated, leaving
the law without the strong backing that it needs’.
PRINCIPLES
3. As far as possible privacy should be respected.
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.
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 – ‘the swell of indignation having abated, leaving
the law without the strong backing that it needs’.
PRINCIPLES
The answer to the third question (“ought the law enforce
morality in all cases or only some”) is thus that, there are no
hard and fast rules.
Each instance must be considered separately and a judgment
reached after taking into account the three matters he has
stated.
In reaching the judgment the principle must be that the law’s
proper purpose is the protection of society.
It is with regard to the purpose of the law that Devlin believes
that the thinking of the Wolfenden report is mistaken.
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’.
The law should not stop here.
PRINCIPLES
‘The law does not discharge its function by protecting the
individual from injury, annoyance, corruption and
exploitation; the law must protect also the institutions and
community of ideas, political and moral, without which
people cannot live together… What makes a society is a
community of ideas, not political alone but also ideas
about the way its member should behave and govern their
lives.’
It is society in this form that it is the proper function of
the law to protect.
In summary form, Lord Devlin’s argument is thus that a society’s
morals are part and parcel of that society.
Its moral standards are the standards of conduct of which the
reasonable man approves.
The law should enforce morals in those circumstances in which
this is necessary for the preservation of the society. It is society
in this form that it is the proper function of the law to protect.
Where any matter is regarded with intoleration, indignation or
disgust, then it is right that it should be prohibited by law since,
if it is not, moral judgments might be confused as a result of
people seeing moral wickedness going unpunished – thereby
bringing law into disrepute – with a consequent weakening of
the society.
In deciding in specific cases whether moral wickedness should be
punished, the ‘legislator’ must gauge the intensity with which a
popular moral conviction is held, because it is only when the
obverse is generally thought to be intolerable that the criminal
law can safely and properly be used.
A significant difference between the position of Stephen
and that of Devlin has been pointed out by Professor Hart.
For Devlin the law should enforce morality as a means of
protecting the fabric of society, of which a shared morality
is an integral part.
For Stephen the preservation of morality is an end in itself
and one that justifies legal enforcement, irrespective of
the fact that immoral acts harm no one directly, or
indirectly by weakening society.
A significant difference between the position of Stephen
and that of Devlin has been pointed out by Professor Hart.
For Devlin the law should enforce morality as a means of
protecting the fabric of society, of which a shared morality
is an integral part.
For Stephen the preservation of morality is an end in itself
and one that justifies legal enforcement, irrespective of
the fact that immoral acts harm no one directly, or
indirectly by weakening society.
ARGUMENTS OF HART
Professor HLA Hart criticized Lord Devlin’s views in his book “Law,
Liberty and Morality” published in 1962.
Before setting out inn his arguments against Devlin thesis, Hart
makes points.
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.
He cited bigamy as example.
Some people may consider that ‘in a country where deep religious
significance is attached to monogamous marriage and to the act of
solemnizing it, the law against bigamy should be accepted as an
attempt to protect religious feelings from offence by public act
desecrating the ceremony..
ARGUMENTS OF HART
Hart does not reject this contention but maintains that it is
important that, although the law is intervening in order to
protect religious sensibilities from outrage by a public act,
the bigamist should be seen to be punished, not as being
irreligious or immoral, but on the grounds of nuisance.
This is because the law, in proscribing bigamy, is dealing
with the offensiveness to others of the bigamist’s public
conduct.
Because of the element of the public nuisance involved in
bigamy, the offensiveness to others is the law’s proper
concern, not the immorality of the conduct.
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’.
ARGUMENTS OF HART
But what, Hart turns to consider, 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, the harm in this case being the distress caused to others
by the thought of what is being done behind closed doors.
Hart rejects this view, 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; and the only liberty that could coexist with this … is
liberty to do those things to which no one seriously objects.’
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.
ARGUMENTS OF HART
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, cannot be
acknowledged by anyone who recognized individual
liberty as value.’
ARGUMENTS OF HART
In support of this thesis, Hart proceeds to make certain
supplements points.
First he challenges Devlin’s views that offences against
the moral code weaken a society.
This is no more than an assumption: ‘…no evidence is
produced to show that deviation from accepted social
morality, even by adults in private, is something which,
like treason, threatens society.
No reputable historian has maintained this thesis, and
there is indeed much evidence against it.
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.’
ARGUMENTS OF HART
Hart says that Devlin, ‘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, so that
a change in its morality is tantamount to the
destruction of a society.’
The former proposition might be accepted
but the latter is ‘absurd’.
ARGUMENTS OF HART
‘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.’
ARGUMENTS OF HART
Next, Hart turns to the means of enforcement: coercion.
There is, he says, ‘little evidence to support the idea that morality is
best taught by fear of legal punishment.
Much morality is certainly taught and sustained without it, and where
morality is taught with it, there is the standing danger that fear of
punishment may remain the sole motive for conformity.’
If the threat of coercion does not teach people to behave morally,
justification for coercion could be sought in the retributive theory of
punishment – that punishment is the appropriate return for the evil
committed.
But a ‘theory which does not attempt to justify punishments by its
results, but simply as something called for by the wickedness of a
crime, is certainly most plausible, and perhaps only intelligible, where
the crime has harmed others, and there is both wrongdoer and a victim’
– 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’.
ARGUMENTS OF HART
But the basis of the thinking is dependent on there
being a victim as well as an offender.
Where, 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.