Morality and Law- Point Summary of the Devlin-Hart-Dworkin-Cane Debate

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 morality as that is at any given moment of its history, so that a change in its morality is tantamount to the destruction of a society. (Hart 51-52. Italics in original.)  The moderate thesis implies factual claims of the disintegration of society for which Devlin did not provide, and (in Hart's view) could not have provided, substantial empirical support. DEVLIN:

 I do not assert that any deviation from a society‟s shared morality threatens its existence any more than I assert that any subversive activity threatens its existence. I assert that they are both activities which are capable in their nature of threatening the existence of society so that neither can be put beyond the law . I would venture to assert, for example, that you cannot have a game without rules and that if there were no rules there would be no game. If I am asked whether that means that the game is „identical‟ with the rules, I would be willing for the question to be answered either way in the belief that the answer would lead to nowhere. If I am 1

(Hart’s term H. L. A. Hart, "Social Solidarity and the Enforcement of Morality," The University of Chicago Law Review 35 (1976), pp 1-13].)

asked whether a change in the rules means that one game has disappeared and another has taken its place, I would reply probably not, but that it would depend on the extent of the change. (Devlin, Morals 37).  Lord Devlin does not then think that this power should be exercised against every single kind and act of immorality. Society should exercise this power only when the moral sensibility of the majority regarding a given immoral activity rises to the level of profound “intolerance, indignation, and disgust” (Devlin, Morals 17)  DWORKIN: If society should not legislate against all immorality, because not all immoral activities and acts endanger its existence, then what standards for evidence and action will be used to justify society’s right to enforce its morality in any given case? The threshold criterion that Lord Devlin offers is public outrage, so it comes out that nothing more than passionate public disapproval is necessary after all!? (Taking Rights Seriously. Cambridge: Harvard University Press, 1977, p. 245) 

Attack against the Extreme/ Conservative Thesis Hart rejected the extreme thesis on the ground that it potentially justified legal enforcement of moral values, regardless of their content, simply because they were widely held. Such restrictions restrict society from evolving naturally in terms of its citizens’ moral beliefs & practices.

 Devlin‟s approach of incorporating moral values into the law “regardless of content, simply because they were widely held” places “an unjustified brake on changes in [what should be dynamic ] social mores” (Peter Cane 23). DEVLIN: 2. The content of moral legislation should be determined by what he terms “public morality”.  This is not merely the majority position that could be determined by a public opinion poll. Public morality is the view held by the “reasonable man” /“right-minded man”  "What is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right minded man" Devlin "The Enforcement of Morals" 38 (1959) Devlin chose the man in the jury box because: a) The verdict of a jury (12 men and women) must be unanimous (at the time he was writing) b) The jury will only reach its verdict after the issue has been fully examined and deliberated. c) The jury box is the place where the ordinary person's conception of morality is enforced.

 Elsewhere his comments suggest that the content of public morality can be identified by some kind of moral intuition  It is the power of a common sense and not the power of reason that is behind the judgments of society…There is, for example, a general abhorrence of homosexuality. We should ask ourselves in the first instance whether, looking at it calmly and dispassionately, we regard it as a vice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it (Devlin, Morals 40).  As DWORKIN phrases the argument: “In the last analysis the decision must rest on some article of moral faith, and in a democracy this sort of issue must be settled in accordance with democratic principles. (b) It is, after all, the community which acts when the threats and sanctions of the criminal law are brought to bear. The community must take the moral responsibility, and it must therefore act on its own lights – that is, on the moral faith of its members” (Dworkin, 246-247)

HART:  Distinguishes between Positive and Critical Morality Critical Morality: A statement of what is morally true Positive/conventional morality: A statement of what most people believe is morally true.  Hart argued Devlin always slipped into the Positive Morality approach. The problem is that beliefs about moral matters change. At any given time in a community, there may be a consensus on some moral questions, while on other questions there will be sharp divisions. Over time, an issue may go from being a matter of consensus to being a matter of controversy, and given enough time, an issue which there was a consensus one way may eventually be a matter of consensus the other way. How can we know that our laws are enforcing society’s moral consensus rather than just protecting the last generation’s prejudices against a consensus forming around another position. (Jurisprudence, theory and context--Brian Bix p.169)  The Harm Principle Hart’s2 point of inception was Mill’s ‘Harm Principle’: If there are any ‘Critically Moral Rights’ or ‘Natural Rights’ there must be a natural right of every person to be equally free. Therefore “The only "purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.”3  Starting with the liberty-protecting Harm Principle enabled Hart to cast onto Devlin the burden of proof on the issue of the relationship between immorality and social harm. Certainly, Devlin provided no hard evidence to support his assertion that society would be worse off without legal moralism but neither did Hart provide any factual evidence that society would be a better (or, at least, no worse a) place without legal moralism (Peter Cane 31).  DEVLIN: the fact that consent is not a defence for various harm-based offences showed that the harm principle was not the law's normative foundation. HART: distinction needed to be drawn between moralism and paternalism. Paternalism is justification of interfering with another person against their will, where that person will then be better off or protected from harm.  DEVLIN: the existence of the crime of bigamy also undermined the harm principle. HART: distinction needed to be drawn between Harm and Offense. What is wrong with Bigamy is its offensiveness to people's religious sensibilities.  DEVLIN: We see (moral) wrongfulness taken into account went sentencing, and we do not premise this on harmfulness because otherwise all crimes will be treated alike whether it was done maliciously or otherwise. HART: distinction needed to be drawn between principles of Sentencing and criminal liability. The fact that the moral gravity of an offender's conduct- its wrongfulness as opposed to its harmfulness can be taken into account in sentencing tells us nothing about the relationship between law and morality. [Hart offers no reason why this should be so (Peter Cane 32)]  To sum up Hart’s position: Everyone has a priori liberty. Cannot exercise that liberty when it

infringes (Harm’s) another’s liberty. A change in social institutions is not the sort of harm from which a society has a right to protect itself. A society’s right to act should be restricted to demonstrable and imminent rather than speculated and distant harm. 2 3

Hart, Law, Liberty and Morality, p. 14.

John Stuart Mill “On Liberty” ch. 1

 Problem: The law seems to have little or nothing to do with the immediate consequences of the

criminalized conduct. These include the criminalisation of attempts, offences of risk-creation, and the acceptability of strict and negligence-based criminal liability. (Peter Cane 33)

 In order to protect the ‘Harm Principle’ there are 2 reactions to criminal liability that seem to

contradict the requirement of “Harm” : 1. Any law that is not premised on harm is wrong, & should be decriminalized 2. Attempt to rationalize in terms of the harm principle any and every aspect of the criminal law that appears at first sight to be inconsistent with it. This is the strategy adopted by Gardner and Shute in relation to rape, and their approach could be applied more generally to cover risk-creation and attempts, for instance. We might say (as Gardner and Shute say in relation to rape) that a society in which the creation of certain risks was not a crime, or in which attempting and contemplating crimes were not themselves crimes, would be (in some sense) a worse society to live in than one in which they were. A worry about this sort of argument, however, is that it depends on the aggregate effect of many such acts, and does not seem to justify coercion of any individual.  Classifying such "diffuse effects" as harm "seem[s] to reduce the significance of Mill's principle to vanishing point."4 Reinterpreting the harm principle to encompass such non-individualized harm =(what Hart called) "the moderate thesis" in different garb! PETER CANE: ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’(2006) 10 (1/2) The Journal of Ethics, Vol. 10, No. 1/2 (Jan., 2006) 

The debate about the limits of the criminal law has become a debate about the meaning of the harm principle and the definition of "harm." Devlin's approach was better. He asked a nonleading question: what factors ought to be taken into account in deciding whether conduct ought to be criminalised? Harm (however defined) is one such factor. But should it be given lexical priority over other relevant factors?  It is easy enough to accept Hart's idea that freedom is a basic human value. Human beings are individuals, and being able to express that individuality in one's choices and actions is an essential component of human well-being. Alongside the individuality of human beings, however, their other most noticeable characteristic is sociability. It is not just that most people choose to live in (larger or smaller) communities or that most people belong to various overlapping and interacting groups. People are also heavily reliant on those communities and groups, and on their relationships with other human beings. If individual freedom is a precondition of human flourishing so, too, is membership of communities and groups, and a rich network of social interactions.  The law has many social benefits: We must view the law positively as a set of social resources rather than negatively as a restraint on individual freedom.  This misconception arises from an unsophisticated picture of criminal penalties that fails to recognize their variety and the varying degrees to which they invade individual autonomy, and impose harsh treatment on and stigmatize the offender. This is, no doubt, partly the result of Hart's argument that rules and principles of sentencing are irrelevant to questions about the limits of the criminal law. This is incorrect: Some conduct should not be criminalised at all, no matter what the penalty. But in relation to some conduct, the answer to the question of

4

N. E. Simmonds, "Law and Morality," in E. Craig (ed.), Routledge Encyclopedia of Philosophy (London: Routledge, 2004), retrieved 19 May 2004 from http:/ www.rep.routledge.com.

whether it should be criminalised will depend on whether a suitable penalty is available. Penalties relate to stigma, and stigma relates to informing a societies interactions.  The conception of the criminal law and of law in general that underpins the Hart-Devlin debate is what we might call a conception of "law as coercion." According to this understanding of law, its prime significance and function is to secure compliance with its norms by threats of coercion and imposition of punishments and other sanctions. Law's coerciveness is seen as the characteristic most relevant to determining its proper limits. This is a deficient understanding of law and its social functions. For the typical, law-abiding citizen the significance of law resides not in its coerciveness but in its normativity. Such a person obeys the law not in order to avoid its coercive sanctions but because they consider obedience to be the preferable or correct course of action. A legal system could not operate effectively if this were not so. In this light, we must question whether a theory of the limits of law based on the assumption that law is seen by those to whom it is addressed as an invasion of their autonomy is likely to be sound. Why should we determine the limits of law by reference to the perspective of the minority of people who obey it only because of its coercive capacity, rather than the perspective of those who view law as a legitimate source of standards of behaviour? If law were viewed from this latter perspective, the idea that it might appropriately prescribe standards of behaviour that express shared social values and aspirations would seem much less objectionable.

DWORKIN: Distinguishes between Goal-Based Strategy and Rights-Based Strategy: Goal-Based Strategy: Even if the behavior is bad for the community as a whole, just considered in itself, the consequences of trying to censor or otherwise suppress it would be, in the long run, even worse. Rights-Based Strategy: Even if the behaviour makes the community worse off, even in the very long run, it is nevertheless wrong to censor or restrict it because this violates the individual moral or political rights of citizens who resent the censorship. Favouring the Rights-Based Strategy (p.194) People have the right not to suffer disadvantage in the distribution of social goods and opportunities, including disadvantage in the liberties permitted to them by the criminal law, just on the ground that their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong. I shall call this the right to moral independence, Justification of the Right to Moral Independence Rights are individual’s trumps5 over a background justification for political decisions that states a goal for the community as a whole. If someone has a right to moral independence, this means that it is for some reason wrong for officials to act in violation of that right, even if they (correctly) believe that the community as a whole would be better off if they did. To some extent, the argument in favour of a particular right must depend on which general background justification for political decisions the right in question proposes to trump.

5

Dworking, Taking Rights Seriously

Dworkin assumes that the background justification with which we are concerned is some form of utilitarianism, which takes, as the goal of politics, the fulfilment of as many of peoples' goals for their own lives as possible. This is the most prevalent background in Western Democracies. Suppose we accept then that, at least in general, a political decision is justified if it promises to make citizens happier or to fulfil more of their preferences, on average, than any other decision could. Suppose we assume that the decision to prohibit pornography altogether does, in fact, meet that test, because the desires and preferences of publishers and consumers are outweighed by the desires and preferences of the majority, including their preferences about how others should lead their lives. How could any contrary decision, permitting even the private use of pornography, then be justified? A proper understanding of the underlying justification for utilitarianism will itself justify the Right. Utilitarianism owes whatever appeal it has to what we might call its egalitarian nature. Utilitarianism claims that people are treated as equals when the preferences of each, weighted only for intensity, are balanced in the same scales, with no distinctions for persons or merit. Even if the majority’s preference (i.e. that which will make the majority happier) is to disadvantage or to advantage a minority, this is inconsistent with the very essence of utilitarianism , so even if it does result in fulfilment of as many of peoples' goals for their own lives as possible, utilitarianism cannot allow that without undermining the philosophy that bore utilitarianism itself. Dworkin’s argument, therefore, comes to this: If utilitarianism is to figure as part of an attractive working political theory, then it must be qualified so as to restrict the preferences that undermine egalitarianism. One very practical way to achieve this restriction is provided by the idea of rights as trumps over unrestricted utilitarianism. The right of moral independence can be defended in a parallel way. Neutral utilitarianism rejects the idea that some ambitions that people might have for their own lives should have less command over social resources and opportunities than others, except as this is the consequence of weighing all preferences on an equal basis in the same scales. It rejects the argument, for example, that some peoples' conception of what sexual experience should be like are inherently degrading or unwholesome. But then it cannot (for the reasons just canvassed) count the moral preferences of those who do hold such opinions in the calculation whether individuals who form some sexual minority, including homosexuals and pornographers, should be prohibited from the sexual experiences they want to have. The right of moral independence is part of the same collection of rights as the right of political independence, and it is to be justified as a trump over an unrestricted utilitarian defence of prohibitory laws against pornography. Limitations on the Right: (p.195) Suppose it is discovered that the private consumption of pornography does in fact significantly increase the danger of crimes of violence, either generally or specifically crimes of sexual violence. Or suppose that private consumption has some special and deleterious effect on the general economy, by causing great absenteeism from work. Then government would have, in these facts, a justification for the restraint and perhaps even for the prohibition of pornography that does not include the offending hypothesis either directly, by the assumption that the hypothesis is true, or indirectly, in the proposition that many people think it true.

Can we find a plausible justification for restricting the display of pornography that does not violate the right of moral independence? We can, obviously, construct a certain argument in that direction, as follows. 'Many people do not like to encounter genital displays on the way to the grocer. This taste is not, nor does it necessarily reflect, any adverse view of the character of those who do not mind such encounters. Another may argue, for example, that his own delight in other peoples' bodies is lessened or made less sharp and special if nakedness becomes either too familiar to him or less peculiar to those occasions in which it provides him special pleasure, which may be in museums or his own bedroom or both. Or that sex will come to be different and less valuable for him if he is too often or too forcefully reminded that it has different, more commercial or more sadistic, meaning for others. Or that his goal that his children develop certain similar tastes and opinions will be thwarted by the display or advertising that he opposes. None of these different opinions and complaints must be the product of some conviction that those with other opinions and tastes are people of bad character.

The Williams Report: If one accepted, as a basis for coercing one person's actions, the fact that others would be upset even by the thought of his performing those actions, one would be denying any substantive individual liberty at all'. 5 5 Report, p. 100. Laws against public sex would generally be thought to be consistent with the harm condition, in the sense that if members of the public are upset, distressed, disgusted, outraged or put out by witnessing some class of acts, then that constitutes a respect in which the public performance of those· acts harms their interests and gives them a reason to object .... The offensiveness of publicly displayed pornography seems to us ... to be in line with traditionally accepted rules protecting the interest in public decency. Restrictions on the open sale of these publications, and analogous arrangements for films, thus seem to us to be justified .... If one goes all the way down this line, however, one arrives at the situation in which people objected to even knowing that pornography was being read in private; and if one accepted as a basis for coercing one person's actions, the fact that others would be upset even by the thought of his performing these actions, one would be denying any substantive liberty at all.