Role of Morality in the Law

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The Hart-Devlin Debate: Hart's Argument

Professor Hart was influenced by theories proposed by John Stewart Mill, supporting what is stated in the report, Hart believes that legal enforcement of a moral code was unnecessary and morally unacceptable as it interferes with individual liberty. 

Hart argues that populism is something that should not occur. The conventional morality of a few should not be justification for prohibiting people to behave in ways that they want to and he substantiates this claim with the theory that people's views are  generally littered with superstition and prejudice. 

Hart draws on Mill's "harm principle" that societies remain even after changes in basic moral views and therefore it is absurd to claim that a change in morals will lead to the degradation of society. 

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The Hart-Devlin Debate: Devlin's Argument

Law without morality "destroys freedom of conscience and is the paved road to tyranny." Devlin supported the concept of society's "moral fabric", that criminal law must respect and reinforce the moral norms of society to prevent the disintegration of society. 

"Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government... the suppression of vice is as much the law's business as the suppression of subversive activities."

- Devlin, 'The Enforcement of Morals' 1959 

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Natural Law Theory

This theory suggests that morals act as a higher code that laws must be based upon; they are intrinsically linked. Professor Fuller, in his book The Morality of the Law, proposes that there are 8 key requirements that are critical to a legal system, even if one is absent then it is not a legal system:

1. Generality: there should be explicit rules

2. Promulgation: rules should be made known to all

3. Non-Retroactivity: rules should not act in retrospect 

4. Clarity: rules should possess no ambiguity 

5. Consistency: there should be no conflict between rules

6. Realism: there should be no impossibility in complying with laws 

7. Constancy: laws should not be changed too frequently 

8. Congruence: administration of rules should coincide with the public's knowledge

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The Wolfenden Report & The Hart / Devlin Debate

The issue legalising homosexuality and prostitution was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The Report suggests that it is not the duty of the law to concern itself with immorality. Professor Hart and Lord Devlin contributed their conflicting philosophies to the report. 

Lord Devlin poses a pragmatic and focused view on the majority rule while Professor Hart offers a more humanistic approach that focusses on individuality. 

Ronald Dworkin, a philosopher and scholar of constitutional law suggests that we should abandon the Hart-Devlin Debate. Instead we should concentrate on Liberties and the concepts of a Basic Liberty and General Liberty. Basic Liberties should never be taken away even if people do it in different ways. While General Liberties can be restricted if they cause harm. 

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Utilitarianism- John Stewart Mill 1859

This concept outlines that individuals should possess free will in choosing to behave in ways that they want and not have society's morals forced upon them. However, this liberty can only justify for actions that do not cause harm to others. 

An extension of this idea is present in the much-debated concept of 'victimless crimes'. Edwin Schur wrote in 'Crimes Without Victims' about criminal acts such as homosexuality and abortion do not harm innocents but only those who engage in these activities of their own free will.

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