LAW AND MORALITY

Introduction
The Nature of Law and Morality
Similarities and Differences Between Law and
Morality
Relationship/Connection Between Law and
Morality
Law, Freedom, Morality and Social Change
Enforcement of Morality by Law
Conclusion
 Enforcement of Morality by
Law: Devlin – Hart Debate
(a) Lord Devlin’s arguments
• “What is the connection between crime and sin and to what
extent, if at all, should the criminal law of England concern
itself with the enforcement of morals and punish sin or
immorality as such”.
• In answering this question,Lord Devlin poses three questions:
i. Has society the right to pass judgment at all on matters of
morals? Ought there, in other words, to be a public morality, or
are morals always a matter for private judgment?
ii. If society has the right to pass judgment, has it also the right to
use the weapon of the law to enforce it?
iii. If so, ought it to use that weapon in all cases or in some; and if
only in some, on what principles should it distinguish?
• First question:
• Lord Devlin believes that there is always something as public
morality. Morals are not a matter to be judged by private
opinion and the society has a right to judge matters of morals.
To Devlin, the structure of every society is made up of both
politics & morals.
• Each member of a community has ideas about good and evil;
these ideas cannot be kept private from the society in which he
or she lives. If persons attempt to create a society in which there
is no fundamental agreement about good and evil, they will fail.
Society is held together ‘by the invisible bonds of common
thought’. Hence, if the bonds of common thought are too far
relaxed, members of the community will drift apart.
• Second question:
• According to Lord Devlin, the answer to the second question is
also ‘Yes’. Society may use the law to preserve morality ‘in the
same way as it uses it to safeguard anything else that is
essential to its existence’. It is not possible to set theoretical
limits to the State’s power to legislate against immorality.
Society has the right to use its laws to protect itself from
internal or external dangers, as evidenced by the law of treason
and many more.
• Third question:
• It is necessary to discuss how society’s moral judgments ought
to be ascertained.
• Lord Devlin argued that certain ‘elastic principles’ must be kept
in mind by a legislature anxious to protect morality and the
State.
(b) Hart’s arguments
• There is no such thing as broad and wide “shared morality” of
Devlin. There is morality no doubt, but amounts only to
‘minimum content of natural law’.
• Hart agreed with the proposition that “some shared morality is
essential to existence of any society”, but it cannot be
established by evidence. Therefore, the proposition is a
self-evident statement.
• For example, nowadays, since the society is pluralistic, there is
an 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 and the like. Thus, to Hart,
legislators should pay attention to the ideas of morality held by
the majority. But Hart concedes that the majority itself may be
wrong. For instance,
• Devlin’s concept of morality as a single ‘seamless web’ which
will be torn beyond repair unless communal vetoes on behaviour
are enforced by law, is, according to Hart, an unacceptable
viewpoint. Single breaches of morality do not necessarily affect
the integrity of society in its entirety. See the case of R v Lemon
& Gay News 2- where the application of a poem and cartoon
about the crucifixion with homosexual undertones was held to
be blasphemous libel.
• According to Hart, there is a question of disobeying the law.
Thus, it is quite established, that one cannot preserve dignity and
decency, through enforcement of criminal law on the people. To
Hart, it is the inducement towards obedience which comes from
an acceptance of the standards underlying the law.
• Devlin agrees to law prohibiting immoral acts, because they are
offensive to others and amount to public nuisance. Devlin gives
the example of bigamy. Some people think that in a country,
where there are religious feelings for monogamy, laws against
bigamy should be treated to protect such feelings against
desecration of the ceremony. Hart suggests that a bigamist
should be punished not for being irreligious or immoral, but for
creating nuisance.
• According to Hart, Devlin denounces immoral acts which are
done in private. Hart believes that we have a right to be
protected against any offence to our feelings by some public
demonstration of an immoral act. But at the same time we have
no right to be protected from distress which is caused by
knowledge of the fact that certain acts are done in private.
(c) Criticisms of both arguments
• Regardless of their views i.e. Lord Devlin and Hart, both have
been criticised or attacked.
• For example, looking at Lord Devlin’s view, it has been argued
that law should not enforce morality because of: the moral
feelings may not be spread out widely; if the law enforces
morality, it is possible that it may create more social evils rather
than prevent them; the law has not got the machinery well
equipped for the task; if law were to enforce morality, it would
destroy personal freedom, prevent freedom of choice and
change the state into a totalitarian state.
• Still on Lord Devlin’s view, his test of an ordinary reasonable man
is not reasonable. The reasonable man forms his opinion after a
complete discussion of the pros and cons of all relevant facts and
even then, one finds that the opinion is divided. In such cases,
Devlin wants the majority opinion to prevail.
• Dworkin finds certain flaws with Devlin e.g. His arguments for
law enforcing morality are not valid, because he is mistaken about
what is to be disapproved on moral principle. Dworkin rejected
his idea of what counts as the community’s morality. Also, his
view that criminal law should be drawn from public morality is
basically not correct, etc.
• G. Hughes points that Devlin makes use of the judgment of the
right-minded person to decide about the matters which should
be banned by law. He states: “the yardstick is to be the feeling
of right-minded people, though we are not told who are to be
considered ‘right-minded’”. (See Devlin’s stand on the crime of
abortion i.e. nowadays, many people do not understand that
abortion is wrong)
• As to Hart, he expands Mill’s ‘harm principle’ on matters of
sexual morality and relies on paternalism to make out a case of
prohibiting homosexual intercourses among the young people,
because it is going to corrupt them. Dias points out that the said
“corruption” implies taking on a moral position before
paternalism.
• Hart’s arguments are not all convincing about sex abuses. He
suggests that paternalism is permitted in matters of bigamy and
polygamy. He believes that the law should prohibit them
because of i.e. it throws the legal obligation of the parties into
confusion, etc.
• Lord Devlin points out if the law can show paternalistic interest
in such matters, which are mentioned by Hart, then why should
it not also show a paternalistic approach to the morals of the
people in general. Examples are live sex on the theatre stage,
exhibition of sadism, wife swapping and keeping of mistresses.
It is contradictory if the state assumes its responsibility by
means of laws for education, health, trade, etc., and at the same
time denies it for morals.
• Dias criticises Hart for accepting the distinction between public
and private spheres of morality, as drawn by Wolfenden
Committee Report. The latter is not the concern of law. He points
out that some acts are different and they depend on whether there
is an immoral purpose. For instance, accosting and soliciting a girl
by money would be for prostitution and, hence, the purpose is
immoral. But on the other hand, if these things are for a student
charity show, the purpose is moral. Dias believes that what a
person does in private can have its effects outside also, because
the social framework comprises so many moral institutions.
• In addition to the above, Dias states that since the state shows
concern for the conduct of its citizens, it may rightly show its
concern with their moral attitudes. He further points out the
reason for prohibition is that social existence depends upon
coordination. This in turn demands prohibition on individual
action. To relax legal prohibitions is the way to social
destruction, particularly when there is little assurance of
self-discipline. As he puts it: “The easing of laws and penalties
on anti-social conduct may conceivably result in less freedom
and safety for the law-abiding”.
 Conclusion
• It is evident that both law and morality serve to channel our
behaviour. Law accomplishes this primarily through the threat
of sanctions if we disobey legal rules. Morality too involves
incentives: bad acts may result in guilt and disapprobation, and
good acts may result in virtuous feelings and praise.
• The relationship between law and morality is one of the more
enduring problems of Jurisprudence. It has come to be the locus
of the dispute between natural law and legal positivism and has
generated a variety of controversies about the scope of legal
enforcement. Like many perennial philosophical issues,
moreover, it has endured because we are pulled in two opposing
but equally plausible directions.
• Whether law should enforce morality is a mixed up legal, moral
and political question. On this question there is a division of
opinion, too.
• For example, Devlin’s supporters continue to stress the need for
the law to assist in the suppression of intolerable vices.
However, critics remind them of the assertion that he who tries
to determine everything by law will foment crime rather than
lessen it.
• On the other hand, Hart’s supporters urge that argument on
these matters must continue. But, critics remind them of the
need for the law to correspond with the community’s declared
feelings and aspirations.