Law And Morality : Relationship Between (To what extent should the law reflect morality) Flashcards
Relationship between law and morality
Legal positivism
Hart and Devlin
Law and morality should be kept separate
All law should be obeyed even if it is imoral
Natural law
Law should be based on morality
Law should come from a higher source(god)
An immoral law doesn’t have to be obeyed under the law unlike legal positivism
The hart and Devlin debate
Hart
The debate Came about from by the 1957 Wolfendon report on homosexuality and prostitution report
The conclusion: it is not the laws job to interviene in the private life of citizens or to seek to enforce any particular pattern of behaviour
It is not the laws business to reflect on what is moral and what is immoral
Recommended the decriminalisation of consensual homosexuality for men over the age of 21
Hart proposed a more limited role for the law in the enforcement of morality
He argued that society should not interfere with private moral or immoral conduct
However hart then limited the application of this general principle by sanctioning the enforcement
He accepted that enforcement is permitted when one of societies dominant moralities is being eroded by a true threat to the cohesion of society
Such a threat though has to be more than merely a challenge to societies code of conduct; there must be evidence that it creates a genuine public nuisance
Harts discussion of the offence of bigamy demonstrates this approach , in a country where deep religious significance is attached to monogamous marriage and to the wedding service the law against bigamy should be accepted as an attempt to protect religious feelings from offence by a public act desecrating. The bigamist is published not for the act of bigamy itself but for the offence he causes to the feelings of others.
Devlin accused Hart of being inconsistent, he challenged hart saying “bigamy violates neither good manners nor decency, when committed without deception it harms no one”
Hart also accepted the legal enforcement of morality in other areas such as the taking of drugs and consensual euthanasia where he believed people need to be protected against themselves.
On the issue of homosexuality hart attacked Devlin for believing that it threatened society with this integration he argued that Devlin’s position was tant amount to declaring that any change in morality threatened the disintegration of society.
He pointed out that Devlin’s approach would cause societies values to stagnate
Hart and Devlin debate
Devlin
Lord Devlin- the enforcement of morals
“Without shared ideas and politics,morals and ethics , no society can exist. Society
therefore is constituted in part by its morality”
He argued that the fabric of society dependant upon a shared or common morality. Where the bonds of that morality are loosened by private immoral conduct the integrity of society will be lost and society will be liable to disintegrate.
He argues that society and law should interfere with the private life of citizens however there are limits to this
“There must be toleration of the maximum individual freedom that is consistent with the integrity of society “
He accepted that personal preferences or likes and dislikes should not form the bases for decisions about what immoral conduct should be untoward.
He therefore developed and objective test to help decide where the boundaries tonne drawn
Only where immoral conduct is regarded by this ordinary man with intolerance with “ intolerance, indignation, or disgust, should it be prohibited by law
Lord Devlin morality is based upon convention, this means that it is based upon what society at large generally regards as being acceptable and desirable.
It is therefore a relative rather than absolute morality as it is not based upon any higher authority regarding good and bad or right and wrongs
Conventional morality serves to maintain the status quo in society in some circumstances this would allow for the continuation of practices that might be regarded as morally repugnant by other societies e.g. Slavery, polygamy and apartheid.
