A Case Study On Devlin Philosophy Essay

Devlin had a very keen inquiry regarding law and morality and he was in favour of interference of law in the case of private morality, whereas Hart was in favour of individual rights. Dworkin was famous for his critique of Hart’s legal positivism. . Instead he was in favour of a middle ground between positivism and natural law. Morality differs from place to place, country to country. For example, adultery is a crime in most Asian countries but not in United Kingdom. This essay consist of Wolfenden committee’s report, the inquiry of Devlin about the report, analysis of HART’s individual rights, HART- Devlin debate and Dworkin’s full analysis of all the reports.

The Wolfenden Report: In 1957 the committee on homosexual offenses and prostitution under the chairmanship of Sir John Wolfenden published its report, bringing the issue of legal regulation of morality to the forefront of public attention. [1] 

The committee gave their most significant proposal that homosexual conduct between consenting adults in confidential should no longer be criminal offense, which we believe to be crucial, specially the importance which society and the law must give to freedom of a person of choice and action in private morality matters. [2] 

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Devlin’s Inquiry about the Wolfenden Report: Devlin took an interest about the report as he has to pass the sentence as a Judge. According to Devlin if a female is punished for abortion then there is no difference between crime and sin. So there should not be any separation between crime and moral law. After publication of Wolfenden report he argued that “The suppression of vice is as much the law’s business as the suppression of subversive activities. [3] Devlin pointed out three questions:

Firstly, is society entitled to pass judgement on all matters or can pass on some matters or reserved it into the private sphere? [4] 

Secondly, if society is entitled to pass judgement, is it also entitled to use law as a means of enforcement? [5] 

Thirdly, if the second question receives an affirmative answer, is society entitled to use the law in all matters or only in some? [6] 

Now the question is what is meant by society? According to Devlin, society means a community of ideas, without shared ideas on politics, moral and ethics no society can exist. [7] Each one of us has ideas about good and evil, they cannot be kept private from the society in which we live. If man and woman try to create a society in which there is no fundamental agreement about good and evil they will fail, if having based it on common agreement, the agreement goes, the society will disintegrate. [8] 

For society is not something that is kept together physically, it is held by the invisible bonds of common thought, if the bonds are too far relaxed, the members would drift apart, a common morality is part of the bondage, the bondage is part of the price of society, mankind which needs society must pay its price. [9] 

According to Devlin the answer of his first question would depends upon the second question’s answer. If society has no right to make judgement on morals, the law must find some special justifications for entering into the field of morality, if homosexuality and prostitutions are not in themselves wrong, the onus very clearly on the law giver who wants to frame a law against certain aspects of them to justify the exceptional treatment. [10] But if a society has a right to make a judgement and has it on the basis that a recognised morality is as necessary to society, say a recognised government, then society may use the law to preserve morality in the same way as its uses it to safeguard anything else that is essential to its existence. [11] 

His third question is in what circumstances the state would exercise its power? That means, how much there can be interference in private interest. According to Devlin there must be toleration of the maximum individual freedom that is concerned with the integrity of society. [12] Devlin accepted that the limits of tolerance will shift from time to time, but insist that “tolerance” is not the same thing as approval. [13] 

From the Devlin’s inquiry few things are clear. [14] 

There must be some causal connections between law and morality, without morality law leads to tyranny.

The main purpose of criminal law is to secure the society’s moral and that moral will help the society to fall down.

He advocated that in the case of private matters law can be interfered and it is fully justified. For him share morality is more important for the society. There should not be any limitation of the state’s power to implement the law; society is entitled by means of its law to protect itself from dangers, whether from within or without. [15] Ultimately the legitimacy of law’s intervention in matters of individual morality depends on the “intolerance, indignation and disgust” of ordinary people and Devlin is confident that ordinary people are capable of differentiating between disapproving of something and being disgusted by it. [16] In reply to the Devlin’s argument “there cannot be a law which is concerned with men’s morals and yet which permits him to be punished for his morality” C.L .Ten said that it is ambiguously formulated and may be taken to refer to the punishment of an action which is not an offence, and this would indeed be inconsistent. [17] For Devlin punishment protects the existing morality by representing or diminishing the number of immoral actions which in themselves are considered “to threaten” or “weaken the common morality” but for Durkheim punishment sustains the common morality not mainly by representing the immoral conduct, but principally by giving satisfactory vent to a sense of outrage because if the event were close the common conscience would lose its energy and cohesive morality would weaken. [18] Durkheim actually insists that the common morality, violations of which are to be punished by the criminal law may have no relation to utility. [19] 

HART’s Individual Rights: Hart emphasis the individual rights than any other thing. In his argument against Devlin, Hart identifies the issue as one of, and not may early about, morality. [20] From his discussion four things are clear. At first he differentiates between harm being suffered by one person in the form of being offended by witnessing other people’s conduct and harm suffered by one person in the form of being offended by merely knowing what other people do. [21] The first obviously the matter of public decency and the law has right to interfere, but the later part is private and outside the scope of law. [22] Secondly, Hart says that Devlin’s argument that maintaining moral bonds are essential to preserve society is depends on “an undiscussed assumption that all morality- sexual morality together with the morality that forbids acts injurious to others such as killing, stealing and dishonesty forms a single seamless web, so that those who deviate from any part are likely or perhaps bound to deviate from the whole, but there is no evidence to support, and much to refute, the theory that those who deviate from conventional sexual morality are in other ways hostile to society” [23] Hart’s third point is that morality differs from time to time, place to place. At the end Hart unlike the Mill does accept that paternalism [24] has a role in legal regulation of morality. Devlin accused Hart not to give clear idea of morality of the society. In the question of “law and morals” in terms of “order and good order” Fuller criticised Hart for ignoring the internal “morality of order” which is necessary to the creation of all law. [25] He rejected Hart’s theory of statutory interpretation on the ground that it seeks the objectives of entire provisions rather than the meaning of individual words which are claimed to have “standard instances”. [26] 

Hart Devlin Debates and its surrounding academic commentary: Wolfenden reports which led to Hart Devlin debate and continue today with the new challenge of moral problems like Gay marriage, surrogacy, cloning etc. [27] According to Hart, Devlin’s some points are confusing and he did not explain it properly. Hart oppose Devlin’s argument that it is permissible for every society to preserve its morality through law. According to Hart, whether or not society preserves moral through law depends upon what society it is. [28] Korkonov in his “General Theory Of Law” says that idea of value is, therefore, the basal conception ethics, no other terms such as duty, law or rights, is final for thought, each logically demands the idea of value as the foundation upon which it finally rests. [29] According to J.S. Mill, legal enforcement is necessary for the purpose of preventing harms to others although he accepted paternalism. [30] But he was criticised by Victorian judge Stephen in his “Liberty, Equality and Fraternity” [31] where Devlin argued that law must maintained the public morality for the existence of society, his inquiry had got some support from a contemporary cases like “Ladies Directory case [32] and the recent support from the House of Lords in Brown case which condemned consensual and private sado-masochistic practices. [33] It was strongly opposed by Hart. Hart pointed out that the real solvent to social morality is not the failure of the law to endorse its restrictions, rather the operation of critical discussion. [34] The moral notions of the majority are matters to which the legislature must pay close account seems beyond question, but what Mill had in mind was that the idea that the majority had the moral right to dictate how everyone else should live needed to be rejected. [35] Hart also accepted the need for law to enforce some morality. The real area of dispute is where the line should be drawn. [36] Mill drew it harm to others; Hart extended the role of law by his acceptance of paternalism, where Devlin justified R vs Donovan [37] as enforcement of morality, Hart saw the decision as a concession to paternalism. [38] Both Mill and Hart argued for individual liberty. Mill always recommended for the better society. According to Mill it is not society’s business that how the individual activities are effective unless and until, it is harmful to another. [39] But Stephen was critical of this. George said “People with definite reasons to trust that a precise act is immoral might sustain the legal prohibition of that act for the sake of protecting public morals without violating a norm of justice”. [40] Raz also argued that people should be leave free to live autonomous lives and it is valuable for valuable activities and relationships. [41] Raz concluded that autonomy together with liberty imposes severe limits on state moral paternalism, but he was in favour of Gay couples marriage. [42] Dworkin makes this point that “if someone would lead a homosexual life does not out of fear of punishment, if he never endorses the life he lives as better to the life he would otherwise have led, then his life has not been improved, by the paternalistic constraints he hates”. [43] Mill’s liberty principle affirms that social and legal control is limited only to those other regarding or public sphere of actions should not be allowed to enter the arena of private or self regarding action. [44] Dr Garret Fitz Gerald, Taoiseach of Ireland while discussing the minority rights in Ireland argued that moral harm is often seen among the harms which should properly be prevented by legislator. [45] Feinberg in his work “The moral limits of criminal law” argued that “There need the respect for autonomy which delimits the legitimate boundaries of concern with others conduct in so far as the concern is expressed through criminal prohibitions. [46] Sir William Blackstone in his “Commentaries” said that “Human laws are not valid without divine law which is all valid and all law derives it from the divine origin”. [47] 

Dworkin’s analysis :

Dworkin in his book “Taking rights seriously” had been discussed about the Hart Devlin debates. In some point he was supporting both of them but in some point he was critic of them. Actually he took a middle way in his writing. According to Dworkin, Devlin’s conclusions are not valid, because he misunderstood what it is to disapprove on moral principles. [48] He was in favour of society’s right to follow its own lights, but he wants some strong reasons for that believe. According to him it is not reasonable to argue that homosexuality is immoral because Bible forbids it or one who practices homosexuality becomes unfit for parenthood or homosexuality are morally inferior as they do not have hetero sexual desires or because of emotional reasons or homosexual acts are physically debilitating or it is a sin. [49] All these reasons are prejudices, falls or may be racial. According to Dworkin to believe some act immoral like Devlin there need some genuine reasons. For example he said if I believe that Bible forbids homosexual acts, the question is whether I am a true follower of Bible or not, if I can omit some other acts from Bible, I cannot say that homosexuality is a sin. [50] He believes in individual rights and respect. For Dworkin the right of individual arises from the social, political and social institution where they live. As per Devlin, legitimacy of morality depends on the “intolerance, indignation and disgust of ordinary people”. [51] On the contrary Dworkin did not deny the majority’s view on morality which in his words “no legislator can afford to ignore the public outrage “. [52] But at the same time he expressed his view that “we must not confused strategy with justice”. [53] Although Dworkin criticised Devlin that Devlin did not give the proper reason for supporting moral enforcement of society’s morality, even Dworkin himself did not explain what would be that strong reasons? According to Dworkin, Devlin’s view is confusing and misunderstanding. But what would be the right view Dworkin did not explain it properly. According to Finnis “government and law should be limited in the range of their application and law should not enter the place where there is “right to be alone”. [54] 

Persuasive View:

From the whole analysis it is evident that, Hart’s view seems to be more persuasive. He never denied the society’s morality but at the same time he was more focused on individual’s right. [55] 

According to Hart, some shared morality is essential to society. If any society is to survive, if any legal system is to function, then there must be rules prohibiting, for example, murder. The rules essential for a particular society may also be enforced. “For any society there is to be found…a central core of rules or principles which constitutes its pervasive and distinctive style of life.” [56] Law of the state exists not merely to secure that men have the opportunity to lead a morally good life but to see that they do. [57] According to Hart, “Morality is valued as the cement of society, the bond, or one the bonds, without which man would not cohere in society. [58] He said conception of morality may vary from society to society, to merit enforcement by criminal law, morality needs have no rational or specific content, it is not the quality of the morality but its cohesive power which matters, what is important is not the quality of the creed but the strength of the belief in it, the enemy of the society is not error but indifference, for the enforcement of the morality its maintenance is necessary to prevent the disintegration of society. [59] According to Hart, the Wolfenden committee report protects the citizen from offensive or injurious activities and provide sufficient safeguard from exploitation or corruption. [60] According to him, to punish people for immoral activities like homosexuality would be tantamount simply because others object for that. The act of punishment would be immoral because the way they will be punished is arbitrary and incorrect. If majority do not like a minority that does not mean that minority are wrong or the minority should be punished. [61] Recognition of individual liberty as a value involves, as a minimum, acceptance of that principles that the individual may do what he wants, even if others are distressed when they learn what it is that he does, unless of course, there are other good grounds for forbidding it. [62] 

Conclusion: From the whole discussion it is evident that individual rights are more valuable than any other matter. Almost all the witters are in favour of the individual rights except Devlin who emphasise on the public morality and he was in favour of the enforcement of the morality. Hart was in favour of the enforcement of public morality without harming the individual rights. Dworkin rests his view on individual right but believed that state can make law for the protection of the society and its people without hampering the individual rights and he wanted a balance between the rights and the law. That means law should not be arbitrary. Everyone has the right to liberty, right to freedom to do anything not harming others. Even the European conventions of human rights have declared that. It is true that morality differs from time to time. Because of that reason now homosexuality is legal in United Kingdom. Even morality differs from place to place. For example adultery is a crime in most Asian countries but not in United Kingdom.

Research Trail Diary (500 words)

See bibliography for full information about sources in this research trail.

1-3rd April

Read the assignment question at least ten times to understand the topic. Tried to find out the topic from the text books (Lloyds and ….). Identified related topic.

4-6th April

Read the relevant books which are recommended by the course tutor. Still it was not understandable. The text books drew my attention to read the Hart, Devlin and Dworkin’s books. These books gave me the better understanding about the assignment.

7-8th April

Searched the Wolfenden committee report from the internet and also found it clearly from the Devlin’s book. This report gave me the clear idea behind the Hart-Devlin debate and Dworkin’s full analysis.

11-12th April

Visited local library. Found two books on Jurisprudence by Indian writers (Mahajan and Mani Tripathy). These books gave me fundamental idea of Law and Morality.

13-15th April

Searched University’s electronic library for Journals and articles. Searched NORA and found lots of relevant American journals and legal essays through Heinonline. This was infact a very good resource. There are lots of other journals. Then I have gone through the lexisnexis.