#1126 - Devlin - Jurisprudence

The Hart Devlin Debate: Introduction The Overarching question is: * Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law? Is it morally permissible to enforce morality as such? Ought immorality as such to be a crime? JS Mill: * * No, "The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others" His own good, either physical or moral is not a sufficient warrant" Critics: "No man is an island" This is illusionary, there are good reason to punish immortality even if it does not harm others. Hart: * Should not enforce morality. Does not defend all of what Mill says, there are many grounds justifying legal coercion of individual other than prevention of harm, but on narrow issue relevant to enforcement of morality Mill seems to be right. Background to the debate Hart points out that in the last few years there has been revival of legal moralism, especially when it comes to sexual offences. Shaw v DPP (Date: ) which affirms that conspiracy to corrupt public morals is a common law offence. Lord Simonds said "there is power to superintend those offences which are prejudicial to public welfare." The Wolfenden Committee the in 1954 set report with goal to "Drive prostitution off streets". It is of note that the main idea was to suppress the offensive public manifestation and not make it illegal itself. Lord Devlin was asked to right a contribution, at first he thought he was sympathetic to Mill's view but the "study destroyed instead of confirmed the simple faith in which I had begun my task" and he ended with conviction that these ideals were not only questionable, but wrong. He echoes James Fitzjames Stephen, "law should be a persecution of the grosser forms of vice." "...looking at it calmly and dispassionately, we regard it as advice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it ." - Lord Devlin