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The Hart-Devlin Debate Essay


Introduction

Morality can be defined as a set of rules or principles that guide the process of making decisions and behavior in society. It also includes principles that define what is acceptable and unacceptable in society. On the other hand, law refers to principles that augment and maintain the morality code in society.

The issue of law and morality is a complex matter that has been widely discussed in various fields including religion, law, and psychology. Many debates have discussed the relationship between morality and law. For instance, the Hart and Devlin debate tried to determine this relationship. Each of the two took a different side in an effort to establish the role that should be played by law with regard to morality. However, their views and suggestions contradicted each other and did present an agreement.

The two represent two schools of thought regarding the matter. The Wolfenden Committee investigated the critical issue of allowing homosexuality and prostitution in society. The report of the committee stated that it is not the responsibility of law to solve immorality. The Hart-Devlin debate was an attempt to contribute to the findings of the Wolfenden committee.

The debate was between Professor Hart and Patrick Devlin. The argument was that homosexuality should be made legal because of the freedom of choice and the privacy of morality. The recommendations of the committee emanated from the principles of utilitarianism. The law is not supposed to interfere with the lives of people as a way of influencing behavior.

This paper will try to solve the controversy by defending Devlin’s arguments. In addition, it will try to demonstrate the flaws present in Hart’s arguments. Homosexuality and prostitution will be discussed as examples of common immoral conduct, and explain why they should be criminalized by discussing their effects on individuals and society. Finally, the paper will use the theory of utilitarianism and the principle of harm to support certain arguments.

Summary of arguments by Hart and Devlin

Devlin argued that it is important to establish laws that control morality because law not only protects individuals but also the society (Ward 26). To Devlin, morality is a requisite for maintenance of good laws that preserve the freedom of conscience, and reduce the probability of tyranny. In addition, he argued that any behavior is capable of causing harm if not regulated by law (Ward 26).

He was of the view that law should be superior to morality and thus control behavior. On the contrary, Hart argued that law should not adhere to the principles of populism. According to Devlin, the majority is not always right. Their ideas and principles are always covered with superstition and prejudice that do not guarantee them to be referred to as guiding principles (Ward 26). To support his argument, Hart referred to John Stuart Mill’s harm principle.

Hart disagreed with Devlin’s argument that morality should be guided and determined by law. Hart supported the committee’s recommendation of legalizing homosexuality and prostitution based on the teachings of Mill. Hart argued that enforcing a moral code was unnecessary, undesirable, and morally wrong (Ward 26). He argued that doing so would interfere with individual liberty and curtail the development of moral principles.

Devlin’s arguments are correct

In refuting the recommendations of the Wolfenden committee, Devlin based his arguments on natural law. Modern legal experts do not an agreement as to whether it is constitutional and right for certain laws to illegalize certain behaviors or conduct based on the fact that a state has authority to control moral views. There is no consensus about whether a state should regulate certain behaviors because of its moral authority.

The Wolfenden committee gave its opinion regarding criminal law. The committee stated that one of the roles of law is to maintain order and morality in the society. Committee members argued that criminal law mainly protects vulnerable people such as children who are not mature enough to understand the intricacies of certain conduct. The committee added that law is not supposed to pursue maters related with immorality.

According to the committee’s recommendation, it is not the responsibility of law to enforce morality. This begs the question: why does law defend citizens against acts such as harm and indecency? Hart and Devlin had clashing arguments because the interpretation of what is harmful to people is relative. For example, Hart argued that the law should not concern itself with immorality (Heilbronn 16). However, in many states, rape is a crime because it hurts and inures people physically, emotionally, and psychologically.

Hart did not consider homosexuality and prostitution as behaviors that can cause harm to people. Devlin differed with Hart on this by arguing that the law should not only protect people but also the society. Devlin was right by arguing that it is imperative for the government to preserve the society. According to Devlin, a society is an important aspect of human survival. A society is preserved by good political, moral, and ethical ideologies and principles. One of the most important aspects of a society is its moral fabric.

According to Devlin, the law should implement certain ethical codes in order to ensure that the moral fabric of the society does not disintegrate. One of the reasons that eradicate social order from societies is absolute freedom for people to do as they wish. Law is important in order to protect the most important aspects of society. One of the causes of societal disintegration is loose moral codes.

It is important for a society to have a guiding moral code to ensure that people do not cross certain boundaries that define what is toxic and what is beneficial to the well being of the society. Elimination of vices from a community is one of the most critical roles of law. Prostitution and homosexuality are two main sources of moral decay in society. Therefore, it is important for states to enact laws that address these issues.

According to Devlin, any type of behavior possesses the potential to cause harm to society by destroying social cohesion (Heilbronn 16). Prostitution and homosexuality are such behaviors or actions that have the potential to destabilize a society.

Therefore, it is imperative to implement moral laws that serve to protect the society from the destructive and destabilizing aspects of prostitution and homosexuality. It is important to explore the harm that homosexuality and prostitution pose to both the individual and society in order to validate Devlin’s argument.

How homosexuality harms society

Research has found out that the rate of domestic violence is 20 times higher among homosexuals than it is among heterosexuals (Davies et al. 56). One of the negative effects of homosexuality is child molestation. Studies have revealed that homosexuals perpetrate about 33 percent of all cases of child molestation (Davies et al. 56).

Statistics have shown that the approximate population of homosexuals in the world is 3 percent. Comparing the reported cases of child molestation and the population of homosexuals reveals that the rate of child molestation is very high. Homosexuality has debilitating effects on families. Families are the most critical components of a society. Therefore, any factor that affects them affects the society. The family unit is in danger because some countries have legalized homosexuality.

For example, in the Netherlands, many families have fallen apart due to homosexual relationships (Davies et al. 58). Homosexual relationships and marriages deny children the opportunity to grow up in a family. It becomes difficult for such children to grow up well because the stigma associated with homosexuality is high. Many children undergo damaging psychological and emotional experiences that affect their normal development. On the other hand, homosexuality is also associated with promiscuity.

Promiscuous behaviors associated with immorality include child sexual abuse, domestic violence, and drug abuse. It is also associated with physical diseases and mental illnesses. These factors contribute towards the degradation of society because they affect children negatively and contribute towards the disintegration of families.

Devlin asserted that using law to control immorality is like using rules to control a game (Heilbronn 16). Without rules, players who play as they wish and order would be nonexistent. Similarly, a society without laws to control morality is laden with immorality that would eradicate social order and cohesion.

Devlin added that law should be used to control immorality in certain cases. He argued that law should apply when the ideas of the majority regarding an immoral act prevail. Dworkin, who demanded to know the criteria that would be used to determine the immoral acts that fall under the jurisdiction of law, criticizes Devlin’s argument (Heilbronn 17). Devlin argued that law should only be used to restrict certain conduct.

He offered a solution to Dworkin’s question by stating that when an immoral act causes outrage, disgust, and intolerance among the people, then law should be used to decriminalize that act (Heilbronn 17). Few immoral acts endanger the well-being of the society. Therefore, it would be wise to use it selectively in order to safeguard the privacy of morality. If the public disapprove an immoral act, then the state should intervene by enacting a law to criminalize it.

How prostitution affects society

Prostitution degrades social systems of justice in several ways. First, it devalues women because it encourages men to view and treat them as objects to satisfy their sexual urges. It debases the dignity of women and ignores the importance of love, respect, and commitment as ingredients of successful families and relationships. Second, it undermines the role and importance of marriage by promoting promiscuity.

Third, it worsens the financial welfare of families because a large portion of available funds is channeled to health and welfare matters. Individuals spend a lot of money on medical treatment. Finally, it exposes men and women to the risk of contracting sexually transmitted diseases. Many people who engage in prostitution infect their partners who do not suspect infidelity in their marriages or relationships.

Prostitution has negative effects on individuals and society. For example, it undermines the value of women and offers men an opportunity to exploit them. In cases where men engage in prostitution, it gives women an opportunity to men.

People who engage in prostitution experience stigma because prostitution is an immoral act. Examples of factors that promote prostitution are financial hardship as well as poor and unfulfilling relationships. Prostitution is harmful to women because it encourages rape, violence, and homicide. Many women have been physically assaulted, exploited, and tortured. On the other hand, prostitution undermines the value of marriage and family.

Many people who engage in prostitution are married. Men who experience dissatisfaction in their marriages turn to prostitutes for sexual satisfaction. As mentioned earlier, family is the building block of society. Therefore, its disintegration contributes towards the disintegration of society. According to Devlin, law should criminalize an act if that act causes intolerance and disgust among people (Sixth Form Law par4).

Majority of people do not support prostitution because of its effects on those involved and the society. Hart was wrong by arguing that law should not concern itself with immorality owing to the privacy of morality and freedom. He did not consider protecting the society’s welfare as important as preserving the individual right to privacy and freedom of choice. Devlin offered several guidelines that should define the relationship between law and morality. He stated that the privacy of morality should be esteemed.

However, if it does not serve to improve the well being of individuals and society, then law should intervene. In addition, he argued that law should only intervene when people become disgusted and intolerant with regard to certain acts or behaviors (Sixth Form Law par6). Devlin was aware of the importance of respecting the freedom of choice and the privacy of morality.

To advance this awareness, he suggested that law should have limits such that it only intervenes in situations that cause disgust and intolerance in the society. Devlin understood the importance of freedom in society. To protect individuals and society from the risks of immorality, laws should be enacted to criminalize certain acts of immorality.

The theory of utilitarianism

Devlin’s arguments could be validated by the theory of utilitarianism. According to utilitarianism, an action is either right or wrong based on its outcome (Scarre 1). The theory goes beyond the needs of one person to the needs of others. John Stuart Mill made critical contributions to this theory. According to Mill, utilitarianism emphasizes the happiness of the majority rather than that of an individual as a basis for determining right and wrong (Scarre 4).

This theory can be used to support Devlin’s arguments and determine whether they were sensible. Devlin stated that law should decriminalize conduct only in cases where certain acts or behaviors caused intolerance and disgust among people. According to Mill, an act is right if it gives happiness to the majority (Scarre 4). If society becomes disgusted because of an act or behavior, then the act is an obstacle to happiness. According to utilitarianism, such an act is wrong.

Bentham’s principle of utility explores the role of pain and pleasure in the lives of people. An important aspect of the principle is its criteria of measuring pleasure and pain. The principle considers the purity of an action as a basis for determining whether it is wrong or right. According to the Bentham, pleasure should not be followed by pain. The principle can be used to support Devlin’s arguments.

Immorality offers momentary pleasure. However, it is followed by pain that lasts for a long time. It hurts individuals and society. According to utilitarianism, the interests of the majority are more important than the interests of the minority. Therefore, if an act or behavior vexes the majority, then it should be criminalized. Differences emerged between Devlin and Hart because of the difficulty experienced in determining the scope of law with regard to morality.

In his arguments, Devlin asked a question that sought to know the type of conduct that should be criminalized. He offered an answer by introducing the aspect of harm. If certain conduct causes harm, it should be criminalized. As demonstrated through the discussion of homosexuality and prostitution, immorality causes harm to individuals and society. Therefore, it is important to criminalize it. Devlin’s arguments were valid.

Weaknesses of Hart’s arguments

Hart argued that people should be given freedom to do what they want (Sixth Form Law par10). He supported the Wolfenden committee’s recommendation to decriminalize homosexuality and prostitution because of the freedom of choice and the privacy of morality. He argued that the views of the majority are usually based on superstition, fear, ignorance, and prejudice that should not be used to impose unfair principles and ideologies on other people (Sixth Form Law par10).

Freedom is a basic human right that should be fostered and respected. People should be allowed to express themselves through their actions and choices. However, other factors are important to the development of human life. When formulating his arguments, Hart considered only one aspect of human life and ignored the other. Human beings have an individual aspect and a social aspect.

Hart ignored the social aspect of human beings. As social beings, humans rely on their communities, social groups, and families for support. These families, communities, and social groups form what is referred to as society. Therefore, society is an important aspect of human life. If individuality is important to people, so is society.

Law should protect and promote the development of individuality as well as the advancement of society. Hart viewed law as an obstacle to the progress of individuality. However, it serves both individuals and society. Devlin was aware of the critical role played by law in advancing individuality. He argued that legislature should consider certain core principles when enacting laws. For example, it should enact laws that respect individual freedom and individual privacy.

He argued that law should only act when the integrity of society is severely violated. According to Devlin, this allowed for toleration of maximum individual freedom as long as it fostered and respected the integrity of society. He was right because certain conduct even though immoral, does not violate the integrity of society. Law should be applied selectively and legislature should consider the aforementioned principles before implementing laws that affect morality.

Hart further used Mill’s harm principle to support his arguments. According to the harm principle, limits should be placed on an individual’s actions only if they harm people. Hart used this principle selectively by failing to evaluate the harm that immorality causes. As mentioned earlier, immorality causes harm to both individuals and society.

This was evident from exploration of the effects of homosexuality and prostitution. Therefore, it is right to criminalize acts of immorality that harm other people. Hart focused more on individual liberty and ignored its effects on other people when applied in certain instances. Devlin did not refute that individual liberty is important.

However, he was concerned that if not limited in certain situations, then it had the potential to hurt other people. In contemporary society, many nations operate on the principle of majority rule. Therefore, whatever is comfortable to the majority in society becomes rule. In order to avoid contradiction and conflict of interest, it is important to develop guiding principles that determine how people behave in various circumstances.

It is impossible to satisfy everyone in society. For that reason, compromise is an important factor in finding a common ground on which to operate. According to Dworkin, the Hart-Devlin debate should be overlooked. He stated that criminalization or decriminalization of behavior should be based on whether it is a basic or universal liberty. He suggested that law should not criminalize all basic liberties but only those that harm other people. It is important to reach consensus when defining harm as well as basic and universal liberties.

The definition of immorality is relative but its relationship to law could be well defined by considering the arguments of Devlin. Devlin’ argument was the most sensible because it considered and valued individual liberty as well as the importance of society. Hart ignored the value of society in the development of individual welfare.

Conclusion

The Hart-Devlin debate was motivated by a report published by the Wolfenden committee that recommended the decriminalization of prostitution and homosexuality. The committee argued that law should not interfere with the freedom of choice and the privacy of morality. Hart’s arguments were weak because they were biased. They emphasized the importance of individual liberty and ignored the significance of creating a society that advances individual liberty.

On the other hand, Devlin’s arguments were strong and unbiased. They included the importance of individual liberty and society. Devlin argued that it is important to control conduct in order to foster the well-being of individuals and society. Further, he argued that society and individual liberty are equally important to human beings. However, he urged legislature to respect individual liberty in its process of implementing laws that affect morality.

Prostitution and homosexuality are examples of behaviours that harm individuals and society. Therefore, Devlin was right in stating that law should criminalize conduct based on the harm it causes. The foregoing discussion on prostitution and homosexuality shows how they affect individuals and society. Devlin’s arguments are augmented by the theory of utilitarianism and the principle of harm.

The theory of utilitarianism states that the happiness of the majority is more important than that of the minority when defining right and wrong. Devlin’s arguments can be based on this theory. If immorality does not bring happiness to the majority in society, it should be criminalized .

Hart’s arguments disrespected society as a vital aspect of human life. In formulating and presenting his arguments, Hart ignored the importance of advancing society through criminalization of conduct that harms other people. People are social beings. Therefore, the well-being of the society should be preserved and advanced because society is a product of people’s socialization.

Works Cited

Davies, Pamela, Francis Peter, and Geer Chris. Victims, Crime, and Society. New York: SAGE, 2007. Print.

Heilbronn, Gary. Introducing the Law. New York: CCH Australia Limited, 2008. Print.

Scarre, Geoffrey. Utilitarianism. New York: Routledge, 2002. Print.

Sixth Form Law: Hart-Devlin Debate. (n.d). Web. <>.

Ward, Ian. Introduction to Critical Legal Theory. New York: Psychology Press, 2009. Print.

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