Hart Devlin Debate PDF

Preview

Summary

Download Hart Devlin Debate PDF

Description

PROF. HART – LORD DEVLIN DEBATE The issue of legalizing homosexuality and prostitution was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The Report claimed that it is not the duty of the law to concern itself with immorality. Professor Hart, and Patrick (later Lord) Devlin contributed to the debate. It was argued that homosexuality should be decriminalized on the basis of: 1) Freedom of choice 2) Privacy of morality

Devlin’s position Law without morality, said Devlin “… destroys freedom of conscience and is the paved road to tyranny”. 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. "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" (1959) Devlin’s view was that any category of behaviour was capable of posing a threat to social cohesion. Therefore, morals laws are justified to protect society against the disintegrating effects of actions that undermine the morality of a society. This social cohesion argument, i.e. the notion of a shared morality was he said necessary for the survival of society. However, what is not clear is what “society” is and whether society's views are always correct.

1

Devlin argued that immorality is what every right-minded person considered immoral. Devlin argued that there could be no theoretical limit to the reach of law; no acts are “none of the laws business”. (Margaret Thatcher once declared, "There's no such thing as society, there are individual men and women and there are families." – Another question comes to mind here as well: is there any shared morality in any society or just perceptions of shared morality?) 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" Devlin chose the man in the jury box because; a) The verdict of a jury (twelve 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. Devlin "The Enforcement of Morals" (1959)

Devlin's guidelines  Privacy should be respected  Law should only intervene when society won't tolerate certain behaviour  Law should be a minimum standard not a maximum standard

-------------------------------------------------()------------------------------------------------------

Hart’s position 2

Hart warned against the dangers of “populism”. Why should the conventional morality of a few members of the population be justification for preventing people doing what they want? This is based on the theory that most people's views are coloured by superstition and prejudice. Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes in basic moral views. It is absurd to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another. Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused on the majority rule. Harts is more humanistic and individual.

Dworkin Ronald Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate of Liberties. If a behaviour is a Basic Liberty (like sex), this should never be taken away, even if someone has a different way of 'doing' sex; e.g. R v Brown (The Spanner Case)** General liberties could be restricted if they cause harm. But, it is not clear how you tell the difference between a basic and a general liberty?

*** R v Brown (or known to public mostly as the Spanner case) was the result of the Operation Spanner carried out the British police in the city of Manchester in 1987 where a group of homosexual men were convicted of “assault occasioning actual bodily harm” for their involvement in “consensual sadomasochism” over a 10 year period. The Manchester police had come to possess a video which seemed to depict acts of sadistic torture, and consequently a murder investigation was launched, as the Police was convinced that the people in the video were being tortured before being killed. This resulted in raids on a number of properties, and a number of arrests.

3

It turned out that the apparent "victims" were alive and well, and soon told the police that they were participating in private BDSM activities. Although all of those seen in the videos stated that they were willing participants in the activities, the police and Crown Prosecution Service insisted on pressing charges. Sixteen men were charged with various offences, including assault occasioning actual bodily harm. The trial judge had ruled that consent was not a valid defense to actual bodily harm and the case was appealed first at the High Court and then The House of Lords. The appeal was dismissed by 3–2 majority of the Lords, with Lord Templeman in particular declaring that the reasoning for his decision was: "In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defense of consent for sadomasochistic encounters which breed and glorify cruelty [...]. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized." **The House of Lords case while ruling that consent was not a valid legal defense for wounding and actual bodily harm in the UK, It also set an exception in “a foreseeable incident of a lawful activity in which the person injured was participating”.** An attempt to overturn the convictions in the European Court of Human Rights in 1997 failed (see Laskey, Jaggard and Brown v. United Kingdom). The ECHR ruled that no violation of article 8 of the “European Convention of Human Rights” occurred. (Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the 4

economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others)

The legal rationale for the decisions was, -in general-: 1. (UK courts) A person does not have the legal ability to consent to receive an act which will cause serious bodily harm, such as extreme activities of a sadomasochistic nature. 2. (European Court of Human Rights) Whilst a person has a general right of free will, a state may as a matter of public policy restrict that in certain cases, for example for the general public good and for the protection of morals. The present case was judged by the European Court to have fallen within the sovereign scope of the UK Government's right to determine its legality, and current (as of 1997) human rights legislation would not overrule this ** In the Criminal Justice and Immigration Bill 2007, the UK Government cited the Spanner case as justification for criminalizing images of consensual acts, as part of its proposed criminalization of possession of "extreme pornography”**

5...