LAW AND MORALS
(MILLS, HART-DEVLIN DEBATE)
v Morality can be defined as a set of rules or principles that guide the process of making decisions and behavior in society. It also includes principles that define what is acceptable and unacceptable in society. On the other hand, law refers to principles that augment and maintain the morality code in society.
v The issue of law and morality is a complex matter that has been widely discussed in various fields including religion, law, and psychology. Many debates have discussed the relationship between morality and law. For instance, the Hart and Devlin debate tried to determine this relationship. Each of the two took a different side in an effort to establish the role that should be played by law with regard to morality. However, their views and suggestions contradicted each other and did present an agreement.
v The two represent two schools of thought regarding the matter. The Wolfenden Committee investigated the critical issue of allowing homosexuality and prostitution in society. The report of the committee stated that it is not the responsibility of law to solve immorality. The Hart-Devlin debate was an attempt to contribute to the findings of the Wolfenden committee.
v The debate was between Professor Hart and Patrick Devlin. The argument was that homosexuality should be made legal because of the freedom of choice and the privacy of morality. The recommendations of the committee emanated from the principles of utilitarianism. The law is not supposed to interfere with the lives of people as a way of influencing behavior.
v Devlin's philosophy of legal moralism takes an idealist's approach to role of law in society. Devlin's philosophy of law argued that the collective judgment of a society should guide enforcement of laws against both private and public behavior that was deemed immoral. According to Devlin, when a behavior reached the limits of "intolerance, indignation and disgust," legislation against it was necessary.
v Hart's philosophy of legal positivism is a pragmatist's approach to the role of law in society. Hart's philosophy of law held that laws should not be based only on popular moral consensus, in the absence of other harms. This is consistent with Hart's argument that one role of law was to protect individual liberty.
v Devlin argued that it is important to establish laws that control morality because law not only protects individuals but also the society. To Devlin, morality is a requisite for maintenance of good laws that preserve the freedom of conscience, and reduce the probability of tyranny. In addition, he argued that any behavior is capable of causing harm if not regulated by law.
v He was of the view that law should be superior to morality and thus control behavior. On the contrary, Hart argued that law should not adhere to the principles of populism.
v According to Devlin, the majority is not always right. Their ideas and principles are always covered with superstition and prejudice that do not guarantee them to be referred to as guiding principles. To support his argument, Hart referred to John Stuart Mill’s harm principle.
v Hart disagreed with Devlin’s argument that morality should be guided and determined by law. Hart supported the committee’s recommendation of legalizing homosexuality and prostitution based on the teachings of Mill. Hart argued that enforcing a moral code was unnecessary, undesirable, and morally wrong (Ward 26). He argued that doing so would interfere with individual liberty and curtail the development of moral principles.
THE THEORY OF UTILITARIANISM
· Devlin’s arguments could be validated by the theory of utilitarianism. According to utilitarianism, an action is either right or wrong based on its outcome.
· The theory goes beyond the needs of one person to the needs of others. John Stuart Mill made critical contributions to this theory. According to Mill, utilitarianism emphasizes the happiness of the majority rather than that of an individual as a basis for determining right and wrong.
· This theory can be used to support Devlin’s arguments and determine whether they were sensible. Devlin stated that law should decriminalize conduct only in cases where certain acts or behaviors caused intolerance and disgust among people.
· According to Mill, an act is right if it gives happiness to the majority. If society becomes disgusted because of an act or behavior, then the act is an obstacle to happiness. According to utilitarianism, such an act is wrong.
· Bentham’s principle of utility explores the role of pain and pleasure in the lives of people. An important aspect of the principle is its criteria of measuring pleasure and pain. The principle considers the purity of an action as a basis for determining whether it is wrong or right. According to the Bentham, pleasure should not be followed by pain. The principle can be used to support Devlin’s arguments.
· Immorality offers momentary pleasure. However, it is followed by pain that lasts for a long time. It hurts individuals and society. According to utilitarianism, the interests of the majority are more important than the interests of the minority. Therefore, if an act or behavior vexes the majority, then it should be criminalized. Differences emerged between Devlin and Hart because of the difficulty experienced in determining the scope of law with regard to morality.
· In his arguments, Devlin asked a question that sought to know the type of conduct that should be criminalized. He offered an answer by introducing the aspect of harm. If certain conduct causes harm, it should be criminalized.
· Hart ignored the social aspect of human beings. As social beings, humans rely on their communities, social groups, and families for support. These families, communities, and social groups form what is referred to as society. Therefore, society is an important aspect of human life. If individuality is important to people, so is society.
· Law should protect and promote the development of individuality as well as the advancement of society. Hart viewed law as an obstacle to the progress of individuality. However, it serves both individuals and society. Devlin was aware of the critical role played by law in advancing individuality. He argued that legislature should consider certain core principles when enacting laws. For example, it should enact laws that respect individual freedom and individual privacy.
· He argued that law should only act when the integrity of society is severely violated. According to Devlin, this allowed for toleration of maximum individual freedom as long as it fostered and respected the integrity of society. He was right because certain conduct even though immoral, does not violate the integrity of society. Law should be applied selectively and legislature should consider the aforementioned principles before implementing laws that affect morality.
· Hart further used Mill’s harm principle to support his arguments. According to the harm principle, limits should be placed on an individual’s actions only if they harm people. Hart used this principle selectively by failing to evaluate the harm that immorality causes. As mentioned earlier, immorality causes harm to both individuals and society.
· It is impossible to satisfy everyone in society. For that reason, compromise is an important factor in finding a common ground on which to operate. According to Dworkin, the Hart-Devlin debate should be overlooked. He stated that criminalization or decriminalization of behavior should be based on whether it is a basic or universal liberty. He suggested that law should not criminalize all basic liberties but only those that harm other people. It is important to reach consensus when defining harm as well as basic and universal liberties.
· The definition of immorality is relative but its relationship to law could be well defined by considering the arguments of Devlin. Devlin’ argument was the most sensible because it considered and valued individual liberty as well as the importance of society. Hart ignored the value of society in the development of individual welfare.
· The Hart-Devlin debate was motivated by a report published by the Wolfenden committee that recommended the decriminalization of prostitution and homosexuality.
· The committee argued that law should not interfere with the freedom of choice and the privacy of morality. Hart’s arguments were weak because they were biased. They emphasized the importance of individual liberty and ignored the significance of creating a society that advances individual liberty.
· On the other hand, Devlin’s arguments were strong and unbiased. They included the importance of individual liberty and society. Devlin argued that it is important to control conduct in order to foster the well-being of individuals and society.
· Further, he argued that society and individual liberty are equally important to human beings. However, he urged legislature to respect individual liberty in its process of implementing laws that affect morality.
· Devlin’s arguments are augmented by the theory of utilitarianism and the principle of harm. The theory of utilitarianism states that the happiness of the majority is more important than that of the minority when defining right and wrong. Devlin’s arguments can be based on this theory. If immorality does not bring happiness to the majority in society, it should be criminalized.
· Hart’s arguments disrespected society as a vital aspect of human life. In formulating and presenting his arguments, Hart ignored the importance of advancing society through criminalization of conduct that harms other people. People are social beings. Therefore, the well-being of the society should be preserved and advanced because society is a product of people’s socialization.
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