Hart-Devlin Debate Flashcards
Context of the Hart-Devlin Debate
Aftermath of World War 2, certain rumblings were happening in western culture. The first wave of the sexual revolution. Loosening of the existing understanding of appropriate sexual identity.
What was Devlin’s assertion?
Devil asserted in response to a commission in UK that asserted that certain sexual laws needed to be loosened because they were damaging to individual liberty. Devlin said that it was essential that society have a certain established morality. Just as you need to have a common citizenship allegiance you need a common moral allegiance. Otherwise there will be a disintegration of social fabric. He likened it to treason. If a person is repudiating his citizenship they’re being traitories, if a person is morally different from others, they are committing a moral treason.
His argument, he said, is on the basis of self preservation of society.
H.L.A. Hart
Criticized devlin by asserting that devlin just took the concept of social disintegration too far. There is no such thing as complete disintegration in circumstances where there is deep disagreement over moral principles. Instead, what happens is a transformation and reinterprtation of their relational connections to each other.
Mainstream morality and Critical morality can exist simultaneously in ways that do not undermine the ability of the society to function.
Separation of law and morality for Hart
Further, here Hart uses positivism to further civil liberties. Says that how is someone doing an immoral act hurting your civil liberties? Since law and morality are separate, you cannot say that someone’s ‘immoral’ act is hurting your civil liberty and curtail such act in the basis of that.
According to Hart, Law and morality must be separated. As long as an act isn’t a crime, irrespective of its moral value, its allowed. However, if its a crime as per laid down laws, then irrespective of morality its a crime. Basically law is ultimate do whatever law says, peak positivism.
