Law and Justice in a Globalised World

Law and Justice in a Globalised World World

2nd Sept, 2016

National University of Study and Research in Law, Ranchi  Law and Justice in a Globalised Globalised World World LL.M. (Semester I) -Khushbu Prasad

 Answer should be in brief and to to the point.

1. “Ough Oughtt immorali ality to as such uch to be a crime?” is one suc such question that has been debated among legal philosophers and thinkers since long. Hart-Devlin debate is one such instance o  philosophical engagement !ith the question that has previously seen similar debate bet!een "ames #it$%ames &tephen and "ohn &tuart 'ill. (hereore) in vie! o the above) analyse critically the ollo!ing issues* a+ ,o ,oi ing ng shou should ld be bann banned ed give given n th the e pote potent ntia iall th thre reat at to th the e participants. b+ ornog ornograph raphy y. c+ /a!s relating relating to prevention prevention o cruelty cruelty to animals. d+ Homose Homoseuali uality ty..

Law and Justice in a Globalised World World

2nd Sept, 2016

Background: The enforcement of morals through legal sanctions is not a new topic to legal

 philosophers. It has, in the past decade, been the object of new and thorough examination, though though it is still open to further further discussion. discussion. It is years since H.L.A. H.L.A. Hart published published Law,  Law,  Liberty and Morality, Morality, which marked the beginning of the  H.L.A. Hart and Patrick Devlin

debate concerning the enforcement of morality by the criminal law in context of a proposal  by the Wolfenden o!!ittee" in !"#$ chaired by Lord %olfenden to decriminali&e male James Fitzjames Fitzjames Stephen  published  Liberty, homosex homosexual ual acti'ity acti'ity in pri'at pri'ate. e. It is since since James  #$uality, %raternity, %raternity, which initiated a similar debate with John Stuart ill . (oth of these

debates concerned the legitimate role of the use of criminal sanctions to punish immoral conduct. As Hart framed the issue, the )uestion can be formulated as* +ught immorality to as such be a crime It is claimed that -ill and Hart say that the answer is /o0 it is said that 1it&james 2tephen and 3e'lin say sa y 4es. 4es. !ntroduction:

In 5reat 5reat (ritain (ritain,, in !"#$ !"#$ %olfen olfenden den 6ommitt 6ommittee ee issued issued its 7eport 7eport on the Homose Homosexua xuall offenses and 8rostitution, which recommended that there must remain a realm of 8ri'ate morality and immorality which is .... not the law9s business:. The committee behind the report contained Lord 3e'lin, a prominent ;udge and the academic 8rof. Hart. The report recomme recommende nded d the the legali& legali&ati ation on of Homosex Homosexuali uality ty and prosti prostitut tution ion on particu particular larly ly 3e Hart>3e'li 'lin n contro'ersy. Lord 3e'lin in his -accabean Lecture in !"#" firmly reasserted the absolutist absolutist 'iew that Csociety cannot li'e without moralsC, and that it was fundamental fundamental to society that laws be based on morals, or at least on Cthose standards of conduct which the reasonable man appro'esC. Howe'er, the more pragmatic 'iew endorsed by H.L.A Hart Hart and encoded by %olfenden %olfenden,, effecti'ely effecti'ely saying that the lawCs capacity to change change pri'ate pri'ate beha'iour was limited, limited, was the one that pre'ailed. pre'ailed. This was not after  all a call to rip down all barriers. It was not in any sense a libertarian charter. 1or  many subse)uent critics the %olfenden position put forward a more effecti'e strategy for societal regulation than an outdated and distrusted moralistic legal framework. The recommendations themsel'es would ha'e seen only a modest diminution of the prison  population, while the 2exual +ffences Act of !"F$ actually increased penalties for   public displays of homosexuality, leading in the immediate aftermath of !"F$ to an increase in prosecutions. The pri'atising of homosexuality could be seen as a more effecti'e way of controlling it. The second point to note is that this new framework for regulation had differential impacts impacts on men and women, women, and on hetero heterosex sexual ually> ly> and homose homosexua xually lly>inc >inclin lined ed  people. The 2treet +ffences Act in !"#", a direct result of %olfenden, %olfenden, dro'e women off the streets by increasing fines and imprisonment. (ut it led at the same time to a reorganisation of prostitution, resulting in a huge expansion of massage parlours and call>girl rackets, under the control of men. Thirdly, %olfenden articulated a 'iew of homosexuality that was to be immensely infl influe uent ntia iall both both for for wom women alt altho houg ugh h the the sect sectio ion n of the the repo report rt addr addres essi sing ng homosexuality was not directly concerned with themB and for men. 1or in a real sense it bought the idea of a distincti'e homosexual identity and way of life into the law for  the first time. 8rior to !"#$, homosexuality as such had had no presence within the

Law and Justice in a Globalised World World

2nd Sept, 2016

law at all. It had been dealt with under legislation relating to Cunnatural offencesC, gross gross indecen indecency cy,, importu importunin ning g and the like. like. In order order to pro'id pro'idee a more more modern modern framework %olfenden had to conjure the homosexual into being. The committee Cdisco'eredC, e'en in'ented, the meaning of homosexuality as sexual identity, sexual  practices and forms of knowledge. A new form of sexual wrong was in'ented in order  that that it could could be righte righted, d, throug through h decrimi decriminal nalisat isation ion.. Altho Although ugh %olfenden lfenden hardly hardly endorsed homosexuality, it recognised that for many it was an irre'ocable destiny. (ehind %olfendenCs framing of the issues was a broad tendency away from ethical collecti'ism collecti'ism towards the indi'iduali indi'idualisation sation of decision decision making, making, and a feeling feeling that the autonomy and self>determination of indi'iduals should be respected. %olfenden, the classic re>statement of legal liberalism in the !"#Gs, offered a framework for the expression of self identities that pointed forward to the new opportunities of the !"FGs and beyond. Lesbians were to benefit from this shift alongside homosexual men.