Hart-Devlin Debate: the debate between Lord Devlin and H. L. A. Hart the theoretical basis of decision-making in cases where there is a conflict between individual moral freedom and social control. It is structured in the form of an analysis of the debate between Devlin and Hart concerning the principles for and against the enforcement of morality. Devlin: Religion=morality. If you want to enforce Religion, you have to enforce morality. You can learn morality through religion. Bible says that "can't kill b/c god said so" The law is here no only to protect the individuals but also to protect the whole society against harm.
Therefore, if you will kill a person with his/her written permission, you will still go to jail. Criminal Court: state vs. Joe Black Civil court: Jane Black vs Joe Black 1. does society have the right to judge whats moraly right and wrong 2. Can society use the law to enforce 3. Should society use the law all the time to enforce morality Society would disintegrate without morality and the implementation of it Devlins idea: a society has to be held together by a common thought, if such does not exist, then one must exercise force to get the common thought in. Without moral believes law rests in force.
Argues that even the law requires some morality behind it. Some people don't break the law b/c it's the right thing to do. Others do break the law when no one sees (no one can enforce it). Can create chaos–>devlin's thesis. Can't draw a line between public and private morality. Morality in people changes:-slavery used to be morally right now its morally wrong It the matter of balance between the society and its moral How can one know that we reached the limit of tolerance? -you draw a line when tolerance had been reached-disgust is one of the indicators. Morality–>always the same
Mores–>changes with time Reasonable man: regular guy. Good example of how people feel, believe Rational man: guy who can argue rationally about different things He doesn't believe that it is morally permissible to enforce what is morally right; rather he believes that it is morally permissible to enforce those views of morality that are shared by most of the people – even if they turn out to be incorrect. On Devlin's view, it is not possible to set limits to the law's power in advance. "It is not possible to set theoretical limits to the power of the State to legislate against immorality.
It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured.
But an established morality is as necessary as good government to the welfare of society…. There are no theoretical limits against the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality" (205). When Should the Law Regulate Morality? Note that the fact that it is permissible to regulate morality doesn't imply that the state always should legislate morality. So Devlin wants to know when should the state exercise its authority to legislate morality?
"Nothing should be punished by the law that does not lie beyond the limits of tolerance; it is not nearly enough to say that a majority dislike a practice; there must be a real feeling of reprobation. Those who are dissatisfied with the present law on homosexuality often say that the opponents of reform are swayed simply by disgust. If that were so it would be wrong, but I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached. Not everything is to be tolerated.
No society can do without intolerance, indignation, and disgust; they are the forces behind the moral law, and indeed it can be argued that if they or something like them are not present, the feelings of society cannot be weighty enough to deprive the individual of freedom of choice. " 1. Human beings cannot lead a meaningful and satisfying existence without society. 2. It is morally permissible for human beings to do what is necessary to preserve the possibility of a meaningful and satisfying existence. 3. Therefore, it is morally permissible for society to use the law to ensure the existence of society.
4. A society cannot exist without a shared morality (i. e. , a shared morality is necessary to the existence of society). 5. Therefore, it is morally permissible for society to use the law to protect its shared morality (i. e. , a society may permissibly restrict behavior solely on the ground that it violates the shared morality of a society). HART: Harm principle: should be no law for which people gonna be punished Common law principle: judges were supposed to enforce law and persecute when public morals are beings corrupted judges are custodians of public morality
Common law: judicial presodents from prior cases. Was used before the written law came out Ex post facto law: one can be arrested for comiting a crime 2 days before it becomes a law Positive morality: almost like sociology Critical morality: you are evaluating this morality Coertion (selfcoertion-fear of getting punished)=evil Repressing desires: some might think that it is against one personal freedom Repressiong sexual desires: bad–>causes particualr kind of pain and repression Hart says if you opress someone sexually it is a bad thing. On can do sexually what he/she wants in the private.
It would be better not to repress them. Law intends to prevent harm. If can't show harm is being done, can't inforce law Positive morality: public opinion Moderate thesis: morality is necessary by the society needs to be enforced by law. Otherwise the society will seize to exist Extreme thesis: needs to be inforced for the own sake Thretening people does not make them better -Threat +punishment–>good way to prevent harm(immoral person would still not care and do the same things after the punishment) -Rather one must use persuasion to make them better PUNISHMENT IS NOT THE BEST WAY TO TEACH PEOPLE
Moral change comes from critical free discussion. Law will have no effect on morality. If you make something legal, people won't be immidiatelly thinking that's its morally right. Man in the jury box: He is not expected to reason about anything and his judgment may be largely a matter of feeling. It is the viewpoint of the man in the street…. He might also be called the right-minded man. For my purpose I should like to call him the man in the jury box, for the moral judgment of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous" (206).