Devlin recognised

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 practiceneed 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.

Legal Enforcement of Moral Standard

  • 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
  • Human liberty = 3 parts

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