SUBJECT:

JURISPRUDENCE
CODE OF SUBJECT:
LAW 4420
TUTORIAL TIME: 4-5PM
TUTORIAL DAY: TUESDAY
SECTION: 3
PREPARED BY:
KHAIRUNNISAK HASSNI 1211908
SOLEHATUN NISA HASNAN 1213402

CONTENTS

CONTENTS

O
1 Introduction
2 Lord Devlins

3
4
5

PAGE NUMBER

view

on

Morality
H.L.A Harts view on Morality
Conclusion
Bibliography

1.0 INTRODUCTION

The distinction between morals and law can be formulated very simply. Morality
furnishes the criterion for the proper evaluation of our interest, meanwhile law marks out the
limits within which they ought to be confined.
The problem of morality and the law emerged in Britain in acute form in the era
following the Second World War. There was an upsurge of concern, prompted by highlypublicised criminal trials of homosexual offenders and the appearance and sale of literature of
a sexually-explicit nature.1
It was suggested in some quarters that the restraints imposed by the law in the name of
morality were no longer effective and that the disintegration of the social fabric was not far
off.
The Report of the Committee on Homosexual Offences and Prostitution (known as the
Wolfenden Report) appeared in 1957 and recommended changes in the law. The philosophy
of Wolfenden Report was based on two grounds. First, the function of the criminal law was to
preserve public order and decency, to protect the citizen from what is offensive or injurious,
and to provide sufficient safeguards against exploitation and corruption of others. Second,
unless a deliberate attempt is to be made by society, acting through the agency of law, to
equate the sphere of crime with that sin, there must remain a realm of private morality and
immorality.
In this paper, we will discuss on the view of Lord Devlin and Harts reaction upon the
understanding of morality and the law/
2.0 LORD DEVLINS VIEW ON MORALITY
The issues addressed by the Devlin-Hart debate arguing on the issue of homosexuality
should be decriminalisation on the basis of freedom of choice and privacy of morality, a
public debate after the Wolfenden Report (1957)2 was published whereby the Committees had
to study some difficult questions about prostitution and sodomy to know what kind of
1 L.B Cruzon, Jurisprudence,Cavendish Publishing Limited (1995), pg. 226
2 Report of the Committee on Homosexual Offenses and Prostitution, CMD. No.
247 (1957).
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principles should be applied in making homosexuality illegal without making premarital sex
or certain sex acts performed by married couples illegal. The report concluded that there
must remain a realm of private morality and immorality which isnot the laws business.3

Soon after the report has been published, saying that the function of criminal law is to
preserve public order and the law has nothing to do and should not even concern with an
individuals private live, Lord Patrick Devlin responded to the reports findings in his lecture
entitled The Enforcement of Morals and in subsequent published writings. Devlins
response focuses on two main points. Firstly, he argued that the State has the power to
legislate morality in order to protect itself against behaviors that may disintegrate society and
its institutions because to him, law without morality destroys freedom of conscience and is
the paved to tyranny. This was derived from the three questions he asked to know the proper
rule to govern the society and the individuals namely whether the society the right to judge
morals? Or, is there such a thing as public morality, or are morals a matter of private
judgment? The second question is if public morality is found to exist, then has society a
weapon to enforce its judgment? If the answer is yes, then in which cases will the weapon be
used?

According to him, it is not possible to set theoretical limits to the power of the State to
legislate against immorality. Devlins compares the need for legislation against immoral
behavior with the necessity to punish treasonous activities. In other words, immoral behavior
threatens the long-term integrity of society4. In his lecture, he mentioned that An established
morality is as necessary as good government to the welfare of the society. Societies
3 Wolfenden Report, para 62
4 Arthur Scheller Jr., Law and Morality, 36 Marq. L. Rev. 319 (1953).
4

disintegrate from within more frequently then they are broken up by external pressures
History shows that the loosening of moral bonds is often the first stage of disintegration5

He also mentioned the importance of protecting the societys internal structure from being
collapsed. It is to be noted that the idea of "collapse" in a philosophical sense means that a
society will cease to exist, but only to become another society and based on different ideas it
is important that the notion of society include the sharing of ideas be it political, moral and
ethical. Substantial changes in the arrangement of shared ideas may result in the total
transformation of such society. Therefore, society has thus a right to judge morals and protect
its own existence. Morals are not a matter of private judgment; all morality is public. Society
is entitled by means of its laws to protect itself from dangers, whether from within or without
(Devlin, Morals 36).

Secondly, Devlin argues that the content of moral legislation should be determined by
what he calls public morality. Devlins public morality is what he calls the reasonable
man or the right-minded man. According to him, immorality is what every right-minded
person considered immoral.
Any category of behaviour was capable of posing a threat to social cohesion because
to Devlin, the notion of a shared morality was he said necessary for the survival of society.
Devlin suggested that the common morality could be discerned by asking; "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.

5 Devlin, The Enforcement of Morals (Oxford University Press 1959) p. 36

5

From the reading and the research of the debate between the two philosophers, in
Devlins view, he chose the man in the jury box because the verdict of a jury which consists
of twelve men and women must be unanimous. Also, the jury will only reach its verdict after
the issue has been fully examined and deliberated and the jury box is the place where the
ordinary person's conception of morality is enforced.

Despite the fact that his lecture is more concern on how the State should legislate to
protect the morality of the society as a whole, Devlin has also recognized that individual
rights and interests should not be completely ignored. According to Devlin, there should be a
balance between private and public interests. However, this balance must be accomplished in
a case by case manner in light of the general principle of valuing and reconciling as much as
possible the interests of the society with the interests of the individual6.

Thus, Devlins statement that there should not be theoretical limits to the power of
the State to legislate against immorality comes into clearer focus and into question. There
should be limits and those limits should apparently be defined by the current views
concerning individual rights and private interests, on the one hand, and public interests, on
the other.

In his conclusion, Devlin suggested that it is the power of a common sense and not the
power of reason that is behind the judgments of society as for example, a general abhorrence
of homosexuality. His conclusions he summarized in this remark, 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
6 Dworkin, Ronald M., "Lord Devlin and the Enforcement of Morals" (1966).
Faculty Scholarship Series. Paper 3611.
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which we live, I do not see how society can be denied the right to eradicate it (Devlin,
Morals 40). This position however was carefully stated as hypothetical because apparently
Lord Devlin does not now think that the condition is met, because he has publically urged
modification of the laws on homosexuality since the book's publication7.

3.0 H.L.A HARTS VIEW ON MORALITY

As opposed to Lord Devlin, who refers to the general sense of right and wrong in society,
Professor H.L.A Hart8 seeks to rationalize the human activity. The problem is one of critical
morality about the legal enforcement of positive morality. Speaking of the inter influence of
law and morals, he discusses the existence or integration of morality in the definition of a
legal system, and introduces the concept of critical morality 9. Throughout this analysis,
however, Hart pursues one goal, the contemporary demonstration of the validity of John
Stuart Mill's position on the legal enforcement of morality .In short, Mill's stand was that
immorality as such is not a crime, as what Mill said "the only purpose for which power can
rightfully be exercised over any member of a civilized community against his will is to
prevent harm to others".
In his own way, Professor Hart endeavours to justify this principle and rebuke Lord Devlin's
(and others') theory that morality should be visualised in a positive way, that is, to ensure the
protection of society in its moral structure. "Harm to others" should be the test for the legal
7 Dworkin, Ronald M., "Lord Devlin and the Enforcement of Morals" (1966).
Faculty Scholarship Series. Paper 3611.
8 Herbert Lionel Adolphus Hart (18 July 1907 19 December 1992) was a
British legal philosopher, and a major figure in moral and political philosophy. He
was Professor of Jurisprudence at Oxford University and the Principal
of Brasenose College, Oxford
9 Yves Caron, The Legal Enforcement of Morals and the So-Called Hart-Devlin
Controversy , pg.20
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enforcement of morals, although the enforcement of morality as such may be admitted in

some instances such as the punishment of cruelty against animals.
Hart summarizes Devlin's thoughts in two formulas: (a) that the law's function is to
enforce a moral principle and nothing else (b) that he 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, the latter proposition is absurd. There is no evidence that the preservation of a society
requires the enforcement of its morality 'as such'. His position only appears to escape this
criticism by a confused definition of what a society is.
Such statements on the part of the two writers have only led to disagreement. It
would appear, at first sight, that Professor Hart has not fully appreciated the fact that Lord
Devlin is not concerned about the enforcement of morality as such, but that he is worrying
about the protection of society as a going concern 10. Whereas Lord Devlin held that the legal
enforcement of morality was necessary to protect the moral structure of society, and that the
test of morality was the reasonable man's opinion, Professor Hart however on the other hand
suggests that 'harm to others"11 is the only purpose for which the law may be imposed on
individual liberty. Strictly speaking, we need not go further in order to confront Hart with the
underlying principles of his own theory, indeed "harm to others" is meaningful only when one
has been able to determine what sort of "harm" will hurt which "others."
10 Retrieved from
http://sixthformlaw.info/01_modules/other_material/law_and_morality/08_hart_de
vlin.htm, on 23rd March 2015
11 The harm principle holds that the actions of individuals should only be
limited to prevent harm to other individuals. Mill articulated this principle in On
Liberty, where he argued that, "The only purpose for which power can be
rightfully exercised over any member of a civilized community, against his will, is
to prevent harm to others."
8

In other terms, "harm to others" presupposes a complete set of value judgments that will be
found in each society's own structure and inner morality. The concepts of "harm" and "others"
can only by appreciated through a set of relative values, which in turn must depend on a
given notion of society as a whole and as composed of individuals. Therefore, even though
this approach will not favourably approve of the enforcement of morality as such, it will
nevertheless approve of the use of the law to compensate for harm done to others, on the
assumption that this particular society or group, through its common morality, sees harm and
evil in the consequences of a given deed.
Instead of foreseeing the broad consequences of the deed with respect to the moral
structure of society, this type of valuation is limited to the more immediate effects upon the
individuals, as victims of the immoral deed. But notwithstanding the number and depth of
areas examined, the appreciation necessarily requires a system of values which cannot be but
based on a given society's concept of morality and legal sanctions.
One of the most obvious examples of the absence of "harm to others is that of
suicide and of attempted suicide. Should only the interest and well-being of the individuals
be concerned in the definition of morality and of the legal enforcement of morals,
unsuccessful attempts to commit suicide would not fall under the rule of morality since there
would be no harm to others. Only in a broader concept of society and morality will such
deeds be punished, therefore affecting Hart's theory on two grounds, by an implication that
the individual alone cannot form a proper and complete basis for the appreciation of morality,
and by the necessity of having a particular and supple set of values by which morality and
immorality can be defined and enforced.12

12 John Tasioulas, H.L.A Hart on Justice and Morality, pg.7

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Many difficulties are encountered in this process, however; it has been said that such crimes
as attempted suicide and abortion are the object and result of attempts to enforce morality
or that the mere multiplication of so many examples of a species do not allow the observer to
draw a strict rule as to the existence of a legal or moral rule. But, on the other hand, an
unenforced or an unenforceable law is nevertheless a law, and the actual enforcement of some
rules relating to morals, even mere fornication or adultery, is a form of enforcement of
morality. Which morality, though? It seems doubtful that the simple "harm to others" test can
be applied here.
Another objection is the "paternalism" argument where, for instance, criminal law
never admits the consent of the victim as a defence on behalf of the accused. Hart suggests
that far from being an instrument for enforcing moral principles, the rules of the criminal law
in such cases are only pieces of paternalism, designed to protect individuals against
themselves. Whether this interpretation is good or bad, however, it does not help the "harm to
others" theory. Since it is unlikely that society will change such rules of criminal law, it
means that the "harm to others" theory will have to be expanded to include harm to oneself.
The notion of harm would definitely be linked to a system of moral and social values.
This becomes particularly evident in the area of punishment. Punishment, and the threat of
punishment, are intended to prevent further occurrences of evil and suffering or harm.
Criminal law, for example, is not principally directed to the prevention of evil. It may prevent
evil by fear of punishment, but otherwise it is only a sanction. It is not only the suffering that
must be considered here, nor the immorality of causing pain or suffering, but the whole
process of cause and consequence, since one could not exist without the other. When society
has to consider the quantum of punishment, it does so on the relative moral wickedness of the
act done. It therefore, follows that the theory of punishment is also based on a theory of

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values, that is to say, on a given concept of positive morality, supplemented by legal weapons
to ensure its enforcement.
The effectiveness of punishment results from the combination of the evil of suffering
with the evil of immorality in order to produce a moral good. Once it is admitted that
punishment should be related to the relative moral wickedness of the offender and of the act
committed, the whole theory of "harm to others" collapses, or rather is absorbed by the
broader concept of morality as a social value, based upon a society's positive morality. Hart
states the following: They can in perfect consistency insist on the one hand that the only
justification for having a system of punishment is to prevent harm and only harmful conduct
should be punished, and, on the other, agree that when the question of the quantum of
punishment for such conduct is raised, we should defer to principles which make relative
moral wickedness of different offenders a partial determinant of the severity of punishment.
In the theory of punishment, what is in the end morally tolerable is apt to be more
complex than our theories initially suggest. We cannot usually in social life pursue a single
value or a single moral aim, untroubled by the need to compromise with others. Professor
Hart criticizes Lord Devlin's theory as being a seamless web, this is not much more than
labelism. However, it is true that all social moralities possess universal values that are
deemed essential to society and common morality and "worth preserving even at the cost in
terms of those same values which legal enforcement involves".78 Devlin's idea of society as a
community of shared ideas leaves much leeway for adaptation to social evolution, at least so
far as the "reasonable man" (the jury) is made the arbiter of social evolution within the
juridical sphere.

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To conclude, Hart argues that the basis of Devlins axioms is unsound. There is no
seamless web of morality which will be torn beyond repair by individual sexual deviancy.
Single breaches of morality do not necessarily affect the integrity of society in its entirety.
Devlins attempt to equate the need to suppress subversion with the need to suppress
sexual immorality is according to Hart, grotesque. There is no proof that deviation from a
moral code will lead to its utter destruction with harmful effects on society in general.
Hart urges that consideration be given to disproportionate misery which results for the
individual convicted for sexual misdemeanour.
Hart warns legislators of the dangers of using a criterion for legislative action the
disgust produced by deviant behaviour in the mind of the right-thinking man. This can lead
to the condoning of intolerance.
There is a special risk in a democracy, argues Hart that the majority may dictate how
all should live. We ought not to maximise the risk of this happening by adopting the populist
approach inherent in Devlins observations.
4.0 CONCLUSION
In analysing the Devlin-Hart debate, Devlin is calling attention to a very real aspect of
human social life namely people make judgments about how they think other people should
live in their community and they feel strongly about their judgments while Hart is basically
gives more emphasis on another basic disposition of citizens in contemporary liberal
democracies like the individuals desire and demand the freedom to make their own moral
choices and resent restrictions to such freedom. According to Devlin, when a behavior
reached the limits of "intolerance, indignation and disgust," legislation against it was
necessary. On the other hand, Hart's philosophy of legal positivism is a pragmatist's approach
to the role of law in society. Hart's philosophy of law held that laws should not be based only
12

on popular moral consensus, in the absence of other harms. This is consistent with Hart's
argument that one role of law was to protect individual liberty. However, their theories, in the
end, are not that far apart; Hart deals with the opposition between law and morality, while
Devlin discusses the interplay of law and morality.

5.0 BIBILIOGRPAHY

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