Law and Morality
DEVLIN:
1. Criminal law is not (just) for the protection of individuals but also for the protection of society
Moderate / Disintegration Thesis: 1
The state has power to legislate morality in order to protect itself against behaviors that may disintegrate society and its institutions
Society “means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist” (Devlin, 10).
Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. Society’s morality is a crucial, if not the crucial, element that holds it together
"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" 36 (1959)
Extreme/ Conservative Thesis:
A society is entitled to enforce its morality in order to preserve its distinctive communal values and way of life
HART:
Hart critiques Lord Devlin’s first argument by challenging his conception of society “*He has+ a confused definition of what a society is” (Hart (1962) chapter 82).
Attack against the Moderate/ Disintegration Thesis
Hart argues that decriminalizing behavior, which has previously been viewed as immoral behavior, is not necessarily a threat to the society’s long-term cohesion or existence.
[Devlin] appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its
1. Criminal law is not (just) for the protection of individuals but also for the protection of society
Moderate / Disintegration Thesis: 1
The state has power to legislate morality in order to protect itself against behaviors that may disintegrate society and its institutions
Society “means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist” (Devlin, 10).
Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. Society’s morality is a crucial, if not the crucial, element that holds it together
"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" 36 (1959)
Extreme/ Conservative Thesis:
A society is entitled to enforce its morality in order to preserve its distinctive communal values and way of life
HART:
Hart critiques Lord Devlin’s first argument by challenging his conception of society “*He has+ a confused definition of what a society is” (Hart (1962) chapter 82).
Attack against the Moderate/ Disintegration Thesis
Hart argues that decriminalizing behavior, which has previously been viewed as immoral behavior, is not necessarily a threat to the society’s long-term cohesion or existence.
[Devlin] appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its