Hart-Devlin Debate on

‘Enforcement of
Morals’

By Dr. Myint Zan ©

Different orientation of debate
between Hart and Devlin
Debate on ‘Enforcement of
(public) morals’ not on the
Morality or Validity of
‘Oppressive laws’ as in Hart-
Fuller debate
 In 1859 John Stuart Mill argued in On
Liberty that society has no right to
enforce its moral perceptions where their
violation would not cause objectively
verifiable harm to others
 Mill argued that, in the absence of harm,
diversity is a positive factor to society
which is dangerously inhibited by ‘moral’
repression
 Hart Devlin debate followed the
publication of the Wolfenden Report :
Report of the Committee on Homosexual
Offences and Prostitution (1957)
 Excerpts: ‘.. To equate the sphere of
crime with that of sin, there must be a
realm (‘area’) of morality which in brief
and crude terms is not the law’s
business. To say this is not to condone
or encourage private immorality.’
 As a result starting from 1967 in the UK
homosexual conduct between
consenting persons over 21 years old is
no longer criminalized.
 Comparisons: in US only in 2003 with
the US Supreme Court decision in
Lawrence v Texas is private homosexual
activity between adults no longer a
criminal offence in all US states
 In Fiji’s 1997 Constitution discrimination
on grounds of ‘sexual orientation’ is
prohibited but the consensual
homosexual relations among adults is
still a ‘criminal offence’
 Australia’s Human Rights (Sexual
Privacy) Act 1994 overrides Tasmanian
Law which criminalizes homosexuality as
a result of a UN Committee’s ruling in
the Toonen Case
 Lord Devlin took issue with some parts
of the report that there are private areas
of morality into which the law should not
intrude
 Society rests upon the base of ‘shared
morality’ which can be legally defended
exactly as a society may be defended
from subversive action
 How is the ‘morality’ of a (certain) society
to be determined for the purpose of its
enforcement?
 Devlin seems to propose a ‘jury box’
morality that of the average ‘right-
minded’ citizens (‘moral standards of
behavior are the standards of behavior
of a ‘reasonable man’)
 However Devlin did not say that ‘every
immoral act’ is to be prohibited by law.
The law should enforce morals only in
those conditions which is required for
the preservation of society
 Hart’s response to this was that (even in
the context of UK and others even in the
late 1950s) there is no such thing as
broad and wide ‘shared morality’
 Society is pluralistic. ‘amalgamation of
tolerated moralities and not one shared
morality’.
 Diverse views exist not only on matters
of sex-morality but also on issues of
capital punishment, abortion, surrogate
motherhood, euthanasia, (active and
passive), withdrawal of life-sustaining
treatment,
 One possible example of moral
enforcement through a Constitutional
amendment in the United States was the
‘Prohibition’, in 1920,by the Eighteenth
Amendment to the US Constitution of
the manufacture, transport and sale of
alcohol in the United States.
 In 1933 the the Twenty-first Amendment
repealed the Prohibition and the
Eighteenth Amendment.
 Difficulty of enforcement of (morality) through
laws
 Compare one criteria in Fuller’s inner morality of
law that “laws must be possible to obey”
 Query: Can an extension of this argument be
made, based on Prohibition lessons in the
United States that (in the US) the use of say,
marijuana for medicinal purposes should not be
criminalized. (In the 1990s the US Supreme
Court rejected that argument)
 How about morality of gun control in the
context of the United States?
 Can the arguments for and against gun-
control be made on moral grounds?
 On a less ‘legalistic basis’ can, say,
industry-academy (University)
cooperation which is touted as
‘unqualifiedly good’ be challenged on
moral and ethical grounds?
 Two possible negative (immoral or
unethical) examples of University and
industry cooperation in Western
Countries
 University medical research regarding
the link between smoking and cancer
was, in some instances subsidized by
cigarette companies
 In the 1980s billions of dollars were
misspent by research into US President
Ronald Reagan’s ‘Star Wars’ program
supported by some academic funding
now revived by former US president
George W. Bush, during his
administration
 In relation to Devlin’s ‘public morality’ as
a ‘seamless web’ Hart questioned
whether it really is, since certain moral
issues are not all black or white.
 Morality should not always be based on
‘morality of the majority’ since majority’s
morality could be wrong.
 If ‘popular’ morality is a basis for legal
intervention and punishment then persecution
of the ‘unpopular’ could follow (my comments
as an extreme example compare the Nazis’
persecution of not only the Jews but also
gypsies, homosexuals and disabled persons). It
could be argued that the persecution itself is
immoral but can one also argue that the
persecution may be based on allegedly
‘moralistic’ reasons?
 Devlin’s equation of laws punishing
‘subversion’( in particular with treason)
with those of laws punishing moral
breaches has political undertones.
Hart criticized the judicial enforcement of
certain morals as ‘judicial moralism’
 Hart criticized Shaw v Director of Public
Prosecutions [1962] AC 220 quoting a
1774 decision by Lord Mansfield stating
that the King’s courts are ‘the general
censor and guardian of the public
manners’
I
 In the Shaw case conviction for
publishing ‘for the conspiracy to corrupt
morals’ of what would amount to a
directory of prostitutes was upheld.
 Hart argues that law cannot (or should
not) enforce morality through coercion as
proposed or endorsed by Devlin
 Legal sanction is not the only or even
effective disincentive from people doing
allegedly immoral behaviour
 To be fair Devlin did not state that all
morals should be given the imprimatur
(‘sanction’) of law . The law should
enforce morals only in those conditions
which demand the preservation of
society.
.
 Devlin argues that in deciding whether to
punish ‘moral wickedness’ the legislature
must gauge the intensity with which a
popular moral conviction is held only
when the moral violations would
become intolerable the criminal law can
safely and properly be used.
 On the grounds of Devlin and Hart’s
arguments would any or both approve or
disapprove (actual, hypothetical or real)
the following criminal laws :
 (a) prohibition against bigamy
 (b) prohibition against adultery
 (c) prohibition against blasphemy (of
only the Christian religion as it used to
be in UK) and blasphemy in Pakistan?
 (d) varying gun control laws (US very
lax; Gun lobby and many others assert a
constitutional and moral right to own
guns by individuals) and the maximum of
death sentence in Malaysia for
unauthorized individual ownership of
guns
 (e) a hypothetical law (apparently non-
existent) in any country which
criminalizes the manufacture,
importation, and even the smoking of
cigarettes
 Compare the ‘cultural relativism’ debate
in human rights law
 Can rights and morals be the same in all
societies? Compare the prevailing
practice of female genital mutilation on
cultural grounds in certain African
societies.
 Devlin or supporters of enforcement of
morals in relation to the issue of
homosexuality continue to argue that the
majority view of morality still prevails in
decided cases even after 1967 when
adult, consensual homosexual acts were
decriminalized in UK.
 In R v Bishop (1974) 2 All. ER. 1206 it
was held that an allegation of
homosexuality was an imputation
against character
 However in the 1990s a known
homosexual was nominated and
approved as a High Court Judge in
Australia
 Hart: Moral standards change and
therefore even within the same society
‘moral feelings’ may not be spread out
evenly
 Enforcement of morals may create more
social evils than prevent them
 Hart asserts that (mainly in the context of
Western societies) bigamy and polygamy can
be prohibited by law not on moral but on
‘paternalistic’ grounds
 Hart argues that bigamy and polygamy should
be prohibited because they are (a) “affront to a
public ceremony” (b) throws the legal
obligations of the parties into confusion (c)
bigamist should be punished not for being
‘irreligious’ or immoral but for being a nuisance
 Dias critiqued that if Hart would allow
‘paternalism’ in the case of polygamy
and bigamy then why should the law not
show paternalistic attitudes in other
moral areas as well.
 Dworkin comments that Devlin’s
moralism or moralistic attitudes are
evident in what Devlin considered to be
‘immoral’
 ‘what is shocking and wrong is not his
idea that community’s morality counts
but his idea of what counts as the
community’s morality’
 Many perhaps including some in the United
States Supreme Court for example would
consider Devlin’s views on abortion is old-
fashioned (now) when in the late 1950s Devlin
stated that “nowadays many people do not
understand that abortion is wrong”: G. Hughes
states If that is the case the morality here does
not mean ‘shared morality’ but rather the
morality of a church group.
 Compare the comments in text (page 364) that
“Lord Devlin assumed a degree of moral
solidarity in society which may have existed in
earlier periods of our history which is hardly
discernible today”
 My Comment: But that statement or critique of
Devlin would not be applicable at all to
societies like Saudi Arabia where religiously
determined moral rules constitute the whole
fiber of law and may not be fully applicable to
quite a few other non-Western societies.
 The issue of enforcement of morals is
also related to what role the State plays
in its relation with and regulation of the
conduct of the individual.
 Hart who was critical of Devlin’s views
do not consider that Devlin is entirely a
‘moralist’ in the negative sense of the
word but only critiqued Devlin’s
‘moderate moralism’ concerning
enforcement of morals.
 Again as in the Hart-Fuller debate on the
morality of oppressive and unjust laws Hart by
no means deny the relevance or even in some
cases the necessity for the enforcement of
morals. The lines to be drawn in relation to the
enforcement of morals is difference between
Devlin’s philosophy (which has been described
by McCoubrey and White as ‘moderate
moralism’ -some like Ronald Dworkin may
disagree- ) and Hart’s philosophy (which has
been described as) ‘qualified liberalism’