Consider the issues raised in light of two contrasting theoretical perspectives on law and morality;

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.

If the law does not reflect social values, then adherence to the law is undermined. There needs to be voluntary inherence to the law, this would be more likely if people feel like the law reflects their individual values and values of the community on mass rather than protect them for immediate harm. When it comes to the essence of immorality, Devlin believes it is found in the conduct itself, whereas Hart finds it in the consequences of conduct.