Society is made up of community of ideas, both political & about how members should behave & govern their lives → it has a moral structure made up of moral & political beliefs. E.g. whether man take more than one wife is something soc has to make up its mind on. Institution of marriage is an example of division b/w politics & morals & it would be gravely threatened if individuals judgments were permitted about morality of adultery. Society is held together by invisible bonds of common thought – if they were too relaxed, members would drift apart. Common morality is part of that bondage which in turn is a part of a price for society.
- But beliefs about moral matter change! (Bix: at any time there might be some consensus on some moral questions, yet sharp division on others. Over time, any issue may go from being a matter of consensus to becoming a controversy: so how can we know that our laws are enforcing society’s moral consensus rather than simply protecting last generation’s prejudices against consensus forming around alternative position?
- But it’s not possible to talk of private/public morality any more than it is of public/private highway – morality is a sphere in which there’s public & private interest, often conflicting, which must be reconciled. Impossible to put forward gen. principles – need toleration of max individual freedom consistent w/integrity of the soc, so that nothing should be punished by law that doesn’t lie beyond the limits of that tolerance. Not enough to say majority dislike the practice – need real feeling of reprobation. No soc can do w/out intolerance, indignation & disgust – these are forces behind moral law.
- Limits of tolerance shift but moral standards don’t (controversial!) – the extent to which soc will tolerate departures from them will vary from generation to generation
- So Devlin recognised change only in terms of greater or lesser tolerance; however, when we’re respectful of religious minorities, we don’t see ourselves as being tolerant re deviations from the old rules of persecuting them; instead, we see ourselves as following a new rule that such respect is correct. So his assumption that changes in social convention = laxness in our tolerance of deviation indicates how much he confused conventional & critical morality argued for by Hart. He assumed there was some true moral thinking to which we’d always return – at the very least, this is bad moral history & moral sociology. Truth of the matter is that conventional moral opinion changes & may do so radically over time.
- The sole end for which mankind are warranted, individually or collectively, in interfering w/liberty of any action is self protection. The only purpose for which power can rightfully be exercised over any member of civilised community, against his will, is to prevent harm to others. Remember this happened in the Skip Hire Glasgow case? Well, Hhs own good, moral or physical, isn’t a sufficient warrant & he can’t rightfully be compelled to do/be prevented from doing something b/c it’s better for him/will make him happier/others consider it a better thing to do. These are good reasons for reasoning w/him or persuading, but not compelling him/causing him evil if he chooses not to listen. The only part of conduct for which anyone is amenable to society is that concerning others. In the part which merely concerns him, his independence is as of right absolute. Over himself, individual is sovereign (doesn’t apply to kids, barbarians).
- People should be able to do different things – society isn’t to be made of people doing the same thing
Continue reading “Legal Enforcement of Moral Standard”
Hart, who was influenced by the theories of Mill, criticised tautological equating society with its values and supported the report. He takes a pragmatic approach to argue Devlin’s argument and states there is no evidence if you deviate from one part, the whole society will fail. Hart, being a legal positive, upholds a more liberal view that a legal system can function perfectly fine without the connexion of legal systems and morality. Unless something is harmful to society, the government has no right to interfere in the lives of citizens.
Hart is a strong believer in that morality should not be pressured by criminal law. And, that if citizens do not follow moral codes there will be no social disintegration. He argues that there are legal systems put in place to prevent certain harmful acts known as the “Harm Principle.” He makes a point that Devlin has no evidence to support immoral sexual acts done in private are harmful to society. This was seen in the Double Glazing Glasgow case. Hart supported the report and believed it was unnecessary for the law to enforce moral standards because society was capable of containing many moral standpoints without disintegrating and that it would infringe freedom of the individual. He laid down four reasons why law should not uphold morals
To conclude, Devlin believes society would fall apart if morality did not exist, and Hart believes privacy should be respected and imposing laws on this would only create problems for individuals.
Continue reading “Public vs Private morality? Part 2”
Hart v Devlin – the debate.
Jurisprudence analyses what would be the most efficient way to create a society where individual liberty and normative goals can coexist and be practised in harmony. The question whether should the law be based on shared social morals is what is still being debated today. In this essay, I will analyse the issue of decriminalizing homosexuality and pornography by contrasting the views from H.L.A. Hart and Lord Patrick Devlin in respect of their theoretical perspectives on law and morality which followed the Wolfenden report published in 1980.
Lord Devlin, who was a natural law theorist was adamant that changes in society would ruin morality, was critical of The Wolfenden Report and believed the criminal law is not just there for protection of individuals, but for society as a whole, its institutions, ideas and morals. He felt that society had a certain moral standard, which the law had a duty to support, as society would disintegrate without a common morality. He argues that the community’s state of cohesion is in jeopardy if private behavior is not regulated as those actions go against public morality and harm the whole community. To create a civil society, Devlin proposed three questions which are based on moral principles in order to hold the fabric of society together;
The fabricate of society is maintained by share morality, even if you don’t harm, it still offends so should be prohibited. He says, ‘There must be toleration of the maximum individual freedom that is consistent with the integrity of society.’ As we can see, Devlin develops a more conservative view point on the issue. However, he did realize that there were limits in regards to interfering in private immoral conduct so developed a test. He stated that society should base its morals on “right minded people” and that the law should only state the minimum standard of behavior. There is no moral code. This was similar in the Notary public London case. Rather, a moral consensus – as determined by the reasonable man. Devlin and Hart both have a unique view about immorality.
The law should reflect shared social morals and to prevent harm / potential harm and to preserve the full function of society. Continue reading “Consider the issues raised in light of two contrasting theoretical perspectives on law and morality;”
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We started just a few years back as a small number that was hopeful to bring change in the dental health care. But, today, not only have we spread our wings far and wide. Awards we have accumulated along the way are a proof that the journey was worth taking.
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