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The Legal Enforcement Of Moral Standards Notes

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JURISPRUDENCE READING SESSION 5

THE LEGAL ENFORCEMENT OF MORAL STANDARDS Introduction to Law and Morals Are there aspects of our lives into which the law must not intrude? Can the intrinsic immorality alone of certain activities constitute sufficient ground for their prohibition? In this topic, we will familiarise ourselves with the debate over the moral limits of the law and with some of the controversial cases and intricate concepts it involves, and consider the weaknesses of some classical attempt to address it.

General Reading Primary texts

•• Devlin The Enforcement of Morals, Chs. 1, 6 and 7: Chapter 1


A society is inextricably linked to its morality, usually coming from the traditional religion so that in the UK, for example, Christianity provides us with a moral code. However a state that leaves religion to the private conscience cannot enforce religious beliefs on the basis of that religion. However shared morals can still be enforced through the belief that without them society would be lost.


The law currently does enshrine moral principle e.g. one cannot consent to assault, euthanasia is banned, as is assisted suicide, duelling, incest etc which do not involve doing harm to others. See Hart's response below


Devlin argues that because a society acts with certain standards, others must be bound by them and this cannot be left to individual judgments, lest those standards be threatened e.g. people have to abide by the institution of marriage even if they would prefer to practice bigamy or marriage will be threatened. So what if these standards are threatened? Devlin is just saying that institutions have to be protected or their position in society will be vulnerable. He does NOT say why this matters.


There are 3 stages in Devlin's argument: Firstly that society has a public morality, secondly that society has the right to use the law to enforce morality and thirdly he considers whether morality should always be enforced or whether there should ever be exceptions.


Devlin says that there is such a thing as public morality, as demonstrated by the fact that even those who don't believe in the Christian version of marriage are forced to abide by it. Public morality is that which is held by the reasonable man/man in the Clapham omnibus.


Devlin then argues that because a shared morality is as necessary to society as "a recognised government" then society has a prima facie right to legislate against immorality.

"History shows" that the "loosening of moral bonds is often the first stage of disintegration". Does it? No examples given. He draws an analogy to traitors who undertake subversive activities against the government. Clearly a retarded analogy Devlin denies the public private morality distinction but doesn't say why, except that they often conflict and the court has to decide between them- perhaps he is implying the "no man is an island" argument. Devlin says that when people have an overwhelming disgust for a practice, e.g. homosexuality, the law should eradicate it. The limits of tolerance are passed when this feeling of disgust is so strong that the activity's mere existence is thought of as an abomination. Regarding whether the law should enforce all morals, Devlin says no. He argues that the law's enforcement of morality is of the basic morality necessary to survive and NOT the absolute ideal (e.g. the law doesn't tell people to be charitable) so that it is aiming for the minimum morality. Hence his conception isn't too interventionist/against personal freedoms to too great an extent.

Chapter 6


According to Mill the sole permissible aim of man in interfering with liberty, whether as an individual or as a society, is self-protection. It is not justifiable to interfere with X's liberty "for X's own good". Rather Mill said that X would be able to maximise his own happiness by taking decisions for himself.


Devlin argues against Mill, saying that every man has the ability to affect others so that if he acts immorally, society itself is under attack. Therefore Mill's attempt to cordon off an area into which the law must not pass makes no sense. He says individualism that reigned in Mills' time is now defunct e.g. in economic matters. Devlin's belief still rests on the dodgy premises that (1) Society has a shared morality and (2) that it needs this to survive. Also economics and morality are different. Devlin says that if a large proportion of individuals are consumed by vice then society itself would be weakened e.g. "a nation of debauchees could not have responded to Churchill's call for blood and toil and sweat and tears". Hart is not against stopping people physically self harming e.g. limits on alcohol etc. However where there is no physical harm, there is no reason why a society with loose sexual practices would not be able to respond to Churchill's call. Also he is saying why one particular morality (Christianity) is capable of defending society and NOT that a shared morality in general is necessary for the continuance of society. This contradicts his initial point that any morality, whether based on Islam, Christianity, Hippy-ism etc is fine, so long there is a morality. Could a society of Hippies, who regarded Devlin's stoic values have responded to Churchill's call? Thus is Devlin defending shared morality or shared Christian morality? His specific defence of Christian morals (e.g. his belief that homosexuality is unnatural, prostitutes are "exploiters" and drink is wrong) suggests the latter. The very fact that non-Christian societies DO survive disproves his belief that society needs shared morals.


Devlin rejects the argument that punishment of a vice that cannot be changed (e.g. homosexuality) causes misery unfairly. He says that misery is caused unfairly, by this account to a paedophile, whose imprisonment causes the same misery as a homosexual- neither of them can physically change their desires. Stupid point: the difference is that a consenting adult homosexual is not being harmed whereas a non-consenting child clearly is.


Devlin interprets the basis of Mill's argument as a plea that society should consider that it may be mistaken in morality, and for that reason individuals should be able to go their own way, rather than the way dictated by society. He did not argue that law would be ineffective, nor that society was wrong that prostitution etc was immoral (he thought that it was). Devlin says that on this basis Mill is wrong: we constantly have to impose sanctions (e.g. criminal ones) in the knowledge that we may be wrong, and society could not function without this. Mill's point is a good one that we should keep in mind, but is of no use in

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