Professional Documents
Culture Documents
COURSEWORK QUESTION:
[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
Utilising appropriate primary and secondary sources and making reference to relevant judicial decisions, critically comment in light of the quoted statement, on the extent to which society in England and Wales is entitled, through the agency of the legal system and particularly the Criminal Law, to prohibit certain types of human conduct and to punish offenders on the grounds that their behaviour is immoral.
INTRODUCTION
This coursework requires us to carefully analyse the in many cases, blurryboundaries that separate morality and law, as both concepts can often serve to establish the standards of behaviour for the members of a certain society. It will be discussed then, to what extend is morality due to be legally enforced by the law and where and how should these two elements be separated. The two main approaches about what the law should aim to (enforcing morality or preventing harm) shall also be discussed. We shall take the disintegration theory that Professor Hart used to refer to the theory in which morality is valued as the cement of society into observation as a case of study. We shall also discuss its weak and strong points so as to eventually try to reach the most objectively possible idea of
what should be Laws attitude unto the accomplishment of the moral standards. Once this has been reached, we shall discuss some judicial cases and sentences that present interest for us due to a clash between morality, law enforcement and harm prevention.
MAIN BODY
The second one, as Hart explains, is that these foresaid formulations are []highly ambitious empirical generalisations about a necessary condition for the existence [] of a society (Hart: 3), and that [] no evidence is given in support of the argument (Hart: 3). This lack of evidence is one of the biggest flaws in Lord Devlins arguments.
in private to treason or sedition. Devlins excuse to this way of thinking is that every man is an island and what someone does in private can end up affecting the rest of the society, as Dworkin deduces from Devlins works: We are too sophisticated to suppose that the effects of an increase in homosexuality would be confined to those who participate in the practice alone. (Dworkin: 992) But this, as it has been said before, needs to be empirically demonstrated to cause harm to society. Until then, we should respect the line between law and private life and let law act only take care of the support of private interest in: Remaining free from: a) Undesired physical interference through crimes such as rape, assault, harassment; [] b) Offence through crimes such as incident exposure, indecency in public, solicitation; c) Undesired interference with property through crimes such as theft, robbery, deception [] (Wilson:6)
random might after discussion be expected to be unanimous.(Devlin: 38) That is, the way of thinking about morality that is expected to be found in any right-minded man. Of course, anything considered to be immoral by the reasonable man should be seen as an immorality and it is potentially capable of damaging society. Devlin also says that if this damage goes beyond the limits of tolerance (tolerance is something essential for him), and leads to the intolerance, indignation and disgust of the society and goes beyond the way a right-minded man would behave, that immorality is to be punished. However, as Dworkin points out, this idea presents a flaw, insofar as Lord Devlins conclusions fail because he uses this moral judgment of the society in an anthropological sense: Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalization (based on assumptions of fact so unsupported that they challenge the communitys own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion).(Dworkin: 1000-1) It is then, that Dworkin gives a really good solution to the problem: using a legislator who refuses to take peoples indignation, disgust or intolerance into account, but who is aware of the general feeling of the people towards the immorality in question. Through this non-biased legislators sense, as Dworkin reminds us: A conscientious legislator who is told a moral consensus exists must test the credentials of that consensus. (Dworkin: 1001) is how Law should enforce morality.
When
The French theorist, E. Durkheim differences between the values that some people may hold , which give strength and continuity to a certain society, and the values that all the people must hold, which makes that certain society survive. Only the latter are to be enforced by law because, as he says, punishment is the response of an outraged community to an infraction of a value it holds dear to its collective conscience (Durkheim: 1984) Similar to Lord Devlin, he defends that legal punishment is only reserved for activities that pose a serious threat to the integrity of society.
itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. The minority thought that personal autonomy was above the value of harm prevention because society would suffer no harm if only the consenting subjects in particular were concerned. Regarding this decision Wilson explains The criminal law should fulfil a minimalist role, that is, to intervene only if necessary to protect the interests of other members of the public, not simply to satisfy their moral preferences. (Wilson: 39) The main difference between the two ideologies is that whereas the minority of the Lordships think that society can be harmed only by this consensual violence only if it has a direct public impact. The majority thought that moral damages can be committed as well as the direct damages the minority refers to. The only difference would be that the former takes more time to become apparent than the latter. Another similar case with almost exactly the same resolution is: Laskey, Jaggard and Brown v. The United Kingdom. The facts are as follow: During a routine police investigation, several video tapes of sadomasochistic sexual encounters were found. On the basis of their sadomasochistic actions, the men were convicted for assault occasioning actual bodily harm. In the previously mentioned R v Brown, the House of Lords upheld the judgment, establishing that consent was not a defense to those kinds of actions in these circumstances. The applicants believed that a violation of Article 8 (Privacy) of the European Convention of the Human Rights had occurred. However, The Court decided that the State unquestionably was entitled to regulate through criminal law the infliction of physical harm. The Court was not persuaded by the claims of the applicants, who defended that their behaviour belonged to the private. However, it was evident that the activities involved injury and wounding. As in the previous case, the State authorities were encouraged to consider not only the actual but also the potential harm which was inherent in these activities. After reading both sentences, it is clear then, the support of the House of Lords to the enforcement of morality approach, as Wilson defends in his
book: The House of Lords has now affirmed, by majority, the role of the criminal law in enforcing morality (Wilson: 38). It is difficult to decide which approach is better, or even if there is one better than another. The blurry line dividing them cannot be easily traced and neither the more conservative approach, nor the liberal one can be disregarded.
Conclusion
It seems that morality and law will be bounded forever. The constant struggle among theorists about what should cover each of them or whether one should be used to enforce the other one is pretty much alive nowadays. Both approaches are completely respectable but, it might be interesting to struggle to find a common point, selecting the best parts of each one. The disintegration theory seems somewhat hypothetical and disenchanted in several of the points it defends but so does the liberalist approach. Controlling or not private life through the force of the law is also one of the hot spots in this kind of discussion. The disintegration theory stands for a stronger control of private life through morality, in opposition to the liberalist approach. And it is hard to say that one of them is right and the other one is wrong, for both of them may seem right depending on the way you choose to see society. Moralitys subjectivity is something inevitable. I daresay that the idea exposed by Lord Devlin, of ascertaining the moral judgments through the point of view of a reasonable man, are not that far away from utopia. It might present some flaws, as the liberalists complain. Of course it requires lots of empirical research, not only by jurists, but also anthropologists and sociologists. It is also true, as the liberalists point out, than many horrible actions have taken place in the name of that shared morality the conservatives defend. However, it should not be forgotten, that humankind is constantly evolving and so are its moral values. Many things are yet to be changed in order to reach a just and fair society but maybe we should be more positive as evolution is in most cases always for good.
Bibliography
Devlin, P. The Enforcement of Morals (Oxford University Press 1959). Reprinted in Devlin, The Enforcement of Morals (Oxford University Press 1965). Devlin, P. Morals and the Criminal Law. Richard A. Wasserstrom (ed.) Morality and the Law. Belmont: Wadsworth Publishing Co., 1971, pp. 24-48. Durkenheim, E. The Division of Labour in Society, London: Macmillan (1984). Dworkin, R. Lord Devlin and the Enforcement of Morals. The Yale Law Journal Company, Inc. Vol. 75, No.6 (May, 1966), pp. 986-1005 Hart, H. L. A. Social Solidarity and the Enforcement of Morality. The University of Chicago Law Review, Vol. 35. No. 1 (Autumn, 1967), pp. 113 Wilson, W. Criminal Law: Doctrine and Theory (Longman Law Series). Longman, 2nd Edition. 2003
Cases Laskey, Jaggard, and Brown v. U.K (1997), 24 Eur. H.R. Rep. 39 R. v. Brown (1993) 97 Cr.App.R. 44, [1994] 1 A.C. 212 Legislation European Convention of Human Rights Sexual Offences Act 1967 Sexual Offences Act 2003 OFFICIAL REPORTS The Report of the Committee on Homosexual Offences and Prostitution (cmnd 247) HMSO, 1958 - (Wolfenden Report)