During the Hart/Devlin debate concerning the proposed decriminalisation of homosexual conduct, Lord Devlin asserted that 'suppression of vice is as much the law's business as the suppression of subversive activities. ' It follows then that our political representatives, acting through Parliament, should feel entirely free to regulate, or make unlawful, any conduct that they deem to be immoral or otherwise undesirable. Do you agree?
Many arguments have been offered as to what should constitute an appropriate relationship between morality and the law. It was argued by Lord Devlin that the law should be used to direct the behaviour of private individuals if it violates a moral code. However, Professor Hart argued that autonomy of the individual is of highest importance and the law should not be used to enforce moral values; the law's aim is to shelter society from harm.
It is argued that the law should be based on moral values as they represent a set of commonly accepted rules and standards of human behaviour. Lord Devlin proposed that a society could only be stable if it had a set of shared moral principles, and so legislature should criminalise behaviour where it is clear that there is a 'collective judgment' condemning it. An important part of criminal law is to deter people from transgressing the commonly agreed boundaries of acceptable conduct.
The law should respect and reinforce the moral norms of society in order to keep social order from unravelling; Bills of rights, like that in the Constitution of the United States, are often regarded as being based on natural law principles. Immoral behaviour can be seen to be a threat to social cohesion, and moral laws are justified to protect society against the disintegrating effects of actions that undermine the morality of a society.
Perhaps the more that the law is based on morals, beliefs and values that are shared by a society, the more that the law is obeyed through inner conviction, rather than simply through fear of punishment Although moral values held by a society have considerable influence on what is classed as criminal, criminality and immorality are not the same. It is not an offence to lie, or cheat on spouses (acts which are commonly considered immoral), but traffic offences (which are not immoral) are illegal.
Although Parliament should take into account the feelings of the community, it should not rely upon them; in the past majorities demanded the death penalty, resisted votes for women and thought that slavery was a positive thing. The formation and maintenance of existing laws is usually influenced by party political agendas or problems deemed to be important by groups or individual members of Parliament. Laws are regulations with the aim of protecting society from chaos and oppression, and this often does not coincide with the idea of immorality.
In fact, there is often no set of moral values that are shared by everyone in a society; a point highlighted by the sociologist Durkheim. Since individuals in British society differ markedly in their social status, occupation, religion, ethnicity and upbringing they are unlikely to share all their moral values; if the law was based on moral values shared by everyone in Britain it would only be a very small set of laws, and there would be chaos caused by the lack of regulation in areas such as road traffic.
The law aims to protect people from harm, and following this reasoning the law should intervene and act as a deterrent to self-caused harm. The law does currently do this, for example it is the law to wear seat belts to protect people travelling in cars from harm, and certain harmful drugs are illegal; drugs can be very harmful to the perpetrator's health and can become addictive meaning that users are not able to act (completely) of their own will, and so it is the duty of the law to prevent drug taking.
Harmful sadomasochistic behaviour is currently illegal, and in the case Laskey and others v United Kingdom1 the European Court of Human Rights held that the criminalisation of consensual sadomasochistic was 'necessary in a democratic society' since the criminal proceedings pursued the legitimate aim of 'the protection of health or morals'. There are very few acts of self-harm which harm only the perpetrator, and for this reason modern harm theorists often support the prohibition of controlling narcotics and the obligatory use of seatbelts.
A person who uses drugs usually exposes others to harm, especially if they have dependants, and may need financial or medical state help to rectify the damage they cause to themselves and others. Also, others may copy their behaviour and suffer harm as a consequence, and in cases regarding self-harm acts, such as sadomasochism, it can be argued that participation skews views as to what is acceptable in everyday life, and participants may be coerced into involvement.
However, a limitation should exist to the theory that the law should protect society from harm, in order for it to be pragmatic in a society of free-willed individuals. The extension of the argument that the law should ban behaviour which harms society (including the perpetrator) is that obviously harmful products, or behaviour which has a high chance of causing harm, should be made illegal.
Following the argument that sadomasochistic conduct is illegal as it harms the participants, and drug-taking as it harms the perpetrator and impinges on society, it can be argued that alcohol, cigarettes, extreme sports and unhealthy food should be banned as they harm the perpetrator (with negative effects on their health), can harm others (through passive smoking, encouraging them to eat unhealthy foods, etc) and impinge upon society (through additional pressure upon healthcare services).
Also, if behaviour such as drug-taking is illegal because it causes addiction, thereby harming the perpetrator as they are no longer able to act completely of their own will, then smoking and sex could also be criminalised on the same grounds.