Do you agree with the Statement from Lord Patrick Devlin - Essay Example

? Topic Law Debate Do you agree with the following ment from Lord Patrick Devlin: “Can then the judgement of society sanction every invasion of a man's privacy, however extreme? Theoretically that must be so; there is no theoretical limitation. Society must ...” (Devlin, P (1965) The Enforcement of Morals. OUP, p. 118) Title Personal Privacy and the Law Name/course/institution/date/course supervisor etc can be either here or on a separate title page- could also include your name in the footnote of each page, on the left if you want to. The Essay The general public finds it convenient to refer simply to “The law” implying that there is one, universally accepted and externally imposed set of rules by which society is governed. Very often, this concept is tied to the individual’s sense of morality and values, perhaps stemming from religious beliefs or cultural experience. Hence it can seem that what is legal is not to be questioned – one system of law is very much like another since humans do understand what is right and what is wrong. And since the law is then instituted to protect individuals within the society, but more importantly the society at large, it may seem that the statement of Lord Patrick Devlin, that theoretically any invasion of privacy, however extreme, must be sanctioned, is accurate (Devlin, 1965: 118). If the society is to be protected, an invasion of the privacy of the individual is a small price to pay. Additionally, the society at large would permit such invasions, since each individual would consider him/herself protected by the invasion of someone else’s privacy. In theory, the protection and service of the society must outweigh the rights of the individual, if the individual threatens that society. Legal practitioners and theorists, however, do debate and consider law as constructed, rather than as an external framework within which societies exist. Furthermore, the purpose of law is not as simply stated as: a set of rules meant to protect the society and the individuals within it, with the safety of the society being more important than that of the individual. In a world apparently embracing democratic and human rights principles more widely, the prioritization of the community over the individual is brought into question. As an overview, laws need to be defined as rules which people agree to be subject to, whether within their communities, or on a wider level, which they agree to within their societies or States. To have effective legal systems, the individuals within communities, societies or the States of the world must agree to abide by the laws they have recognised, and acknowledge the authority of the institutions or people who are appointed to manage those laws. There is, in the making of laws, likely to be some overlap between moral and legal rules but, more importantly, whether there is moral justification for a law or not, there has to be widespread convention within the community or society which recognises a law (Hart, 1994: 258). The argument must stand that there should be a rule of recognition – according to which the individuals within a society do recognise and agree to abide by a law. Some norms of a society do fall within the authority of the legal system, while others are socially accepted norms, not always framed by legal structures. All laws, though, are not necessarily connected to morality but do serve to coerce the members of a society into acceptable behaviours and practices. But laws can only be valid when private citizens meet their obligations, or obey the rules, according to the law, and public officials enact the conduct set out within those laws to manage and enact the legal system (Hart, 2004: 110, 116). Often if a legal system is able to meet such criteria, and there are no political reasons for defying the legal system, the population at large will with few exceptions, obey the law. Thus it can be proposed that the “judgement of society” can “sanction every invasion of a man's privacy, however extreme”, as proposed by Lord Patrick Devlin. H.L.A. Hart referred to two levels of law in “The Concept of Law.” Both primary and secondary laws exist within a legal system, he argued. Primary laws govern conduct, usually under some threat of punishment or sanction, of all the members of the society or community. Secondary laws govern the way the legal system is managed: how laws are created; how they can be changed; how and why they are cancelled. It is vital that laws of both types are clearly understood by individuals. This is possible only when clear statements of rules, obligations and privileges are made, and the formulation, imposition and enactment of laws are widely recognised as valid. Perhaps most essentially, who has power within this legal process must be understood and accepted by a population (Hart, 2004: general reading). As this essay will examine, it is often in ownership of power that the law can be abused, and that the sanction of the greater society is no longer of relevance. Instead, the few granted power by the majority determine the extremes to which something like privacy is invaded. Again, according to Hart (2004: 147 and generally argued) a very definite realisation has to exist that the validity of laws can be challenged. Often primary laws can be challenged through processes described in the secondary laws. In fact, morality can be (not exclusively, though) the grounds on which to challenge the validity of a law (Hart, 2004: 250). Simultaneously the overarching consideration must be that recognition, acceptance of the validity and effective enactment of a law will qualify it as a fully developed law, able to be implemented according to the requirements of a given society. Another case for a law being accepted and valid is in that it is “...evidence of a general practice accepted as law” (Sloane, 1982: 59). It must, however, be considered that a law may not be derived from principles of equity and justice, or in fact be logical in a legal framework. Laws should be both “... objective principles universally valid regardless of recognition by any territorial authority,” and “... expressions of the ethical or moral conscience of mankind, of a general world conscience ...” (Sloane, 1982: 65). In the case of many laws which derive from general practice within a society, it is evident that universal principles have had no part in their formulation. The distinction between a legal age for consuming alcohol being 21, and a legal age for driving a motor vehicle – a potentially lethal weapon – being 16, comes to mind. It is also a consideration within the law that express consent is not required in order for a law to be valid. A member of a community need not expressly to have communicated that he/she agrees to a law in order to be subject to it. Customary law argues in favour of the general principle that “... we ought to behave in the way our fellow men behave and during a certain of period of time used to behave” (Hart, 2004: 91-96). This argument may certainly hold true for the population of a community bound together by location, culture and values. In order to protect the greater community, it is not sensible or practical to have each member of a community necessarily communicate or enforce a personal viewpoint of what is good for the society. Therefore, theoretically, there are no limitations to the invasion of privacy of the individual if that invasion is sanctioned by the society, and Lord Devlin may have been accurate in his statement. If the individual need not consent, and the law to invade privacy without limits is recognised by the society at large, and the morality of such a law is approved within prevalent culture and custom, and the law is legally logical, it stands to reason that any law could be considered valid, and the “... judgement of society... (will) ... sanction every invasion of a man's privacy, however extreme” (Devlin, 1965: 118). Does the invasion of the privacy of the individual then qualify as being legally sound, and only theoretically limitless? In reality laws are questioned, abandoned and changed within societies, when they become obsolete, no longer reflecting the morality of a community, or even when they are part of a secondary set of laws (as described by Hart, 2004) used to ensure the oppression or exploitation of individuals in a community. The resistance against authoritarian rule may one day be interpreted as characterising the early years of the twenty-first century. Those secondary rules are enforced by rulers, and the general populace in countries in the news today are rejecting those rulers and their laws – in Egypt, Libya and others. Devlin’s statement is further questionable as a universal truth in light of the fact that individual communities and societies have distinctly different ethnic, cultural and values-based identities, and in many countries, a dominant group within the State does tend to determine law. This is additionally complicated by the issue of Globalisation, increasingly becoming the current and future trend among the world’s populations. “The formal expressions of statehood including territorial boundaries, standing armies and international sovereignty are eroding on favour of alternative definitions of, and organisational structures for, community and identity” (Anderson, 2008: 4). If people identify themselves more by religious grouping, or gender, or sexuality, than by nationality, do the laws of a country apply to them? Vast migration across the globe has come to characterise the modern international arena. In 2000, 175 million people lived outside their place of birth: 158 million of these were urban migrants; 16 million were refugees and 900 000 were asylum seekers (Boyle, 2001: 10, 11). This may mean that an effective, universal system of law should be available to apply to anyone, regardless of their origin. It is obviously debatable whether this means that democratic principles should apply across the globe, too. The individual’s absolute right to privacy may not be realisable in a world where people are being forced to flee their countries of origin for numerous reasons, ranging from political oppression to economic necessity. In the light of democratic principles, is it justifiable to remove one person’s rights for the greater good? The danger is that privacy may be invaded to the extreme for reasons other than those of the “greater good”. In the essay, “On Liberty” John Stuart Mill argues that “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” (John Stuart Mill in Hart, 1963:4-5). This statement implies that in certain societies, at any given time, certain acts will be considered to be immoral, and therefore threatening to the greater good. Hence, authorities in such a society will interpret the law to agree with their own morality. Because of their political or economic power, they will exercise control over members of that society, and hence laws will attempt to regulate morality in such a society. What is considered immoral will become illegal. By way of illustration, the Supreme Court of the United States of America ruled earlier in 2011 that the federal government is entitled to perform background checks not only for direct employees of the American government, but also check into the backgrounds of employees of contractors to the government. A group of 28 contract employees at the Jet Propulsion Laboratory instituted a lawsuit against NASA. Their claim was that their privacy had been invaded after NASA ordered their contracted company to insist on a background check for all employees working on the NASA contract. If the employees refused the background check, they would be dismissed by the Jet Propulsion Laboratory (Writer unknown, 2011, US Supreme Court Website). Two particular aspects of the background checking process were challenged by the employees of Jet Propulsion Laboratory: Questions about drug use, as well as treatment and counselling sought for the problem; Open-ended questions directed at an applicant’s references, including questioning the employee’s honesty or trustworthiness, or whether the referee had any adverse information about the employee. Both these aspects would be invasive of the individual’s privacy in a normal democratic, human rights-based society. Neither would influence their performance in their employment at Jet propulsion Laboratories. That the company was contracted to NASA, a state agency in the U.S.A. became the significant factor, however. In order to justify the Supreme Court decision, the ruling can be summarised as follows: the court believed that the challenged questions were reasonable and furthered the “Government’s interests in managing its internal operations.” Questions about drug treatment and counselling were allowed by the court because they helped the Government recognize drug users who took steps to address their problem. Concerning the open-ended questions, the Court decided “asking an applicant’s designated references broad questions about job suitability is an appropriate tool for separating strong candidates from weak ones.” It was also noted by the court that the Privacy Act protected personal information gathered during background checks, so the employees were in no danger of having their secrets exposed, except by the government employees who had done the background checks. Thus, in perhaps the most important and influential democracy on the planet today, a government is able to invade the privacy of individuals because it has the power to do so. It is questionable whether prior use of drugs, or a counselling process, or indeed the opinions of former employers and referees could be argued to affect or even threaten national security, or the “greater good.” It must be considered that these employees were already employed at the contracted company, not directly by the government agency, NASA. The invasion of privacy may be relatively innocuous insofar as someone’s drug-use and therapy is concerned. But it is clear that the Judeo-Christian morality which informs the law in most Western countries may more seriously shift the boundaries of invasion of privacy. The ostensible immorality of, for example, prostitution, of same-gender relationships, of literature dealing with sexuality and violence, of music and video games – in all these areas laws have, historically, and are still, presently, being promulgated to regulate and legally define what are essentially private human preferences and behaviours, in countries espousing democratic and human rights-based constitutions. It is a debate separate from this one whether these private acts and preferences or choices in any way affect the greater community. In countries where the legal system is heavily influenced by a religious, rather than a secular morality, the situation is usually even worse. Such private human choices as clothing to be worn in public are regulated, and the possibility of privacy is remote. Machiavelli implies in his novel The Prince that the state holds all authority. His belief that not even the church at the time (the all-powerful Holy Roman Empire of the day) was authorised to rule over the state explicitly argues that all morality, power and natural law should be controlled by the rulers of the state, in the interests of national security and the continuance of the rulers’ power. It seems that the statement made by Lord Patrick Devlin may even have been inspired by such Machiavellian thinking. According to such thinking, even modern international organizations such as the UNO do not influence the behaviour of individual states to a marked degree. Thus even as far back as 1500, thinkers such as Machiavelli were promoting the concept of the sovereign state, and there is little doubt that belief in sovereignty continues to influence world politics today. It may therefore be argued that the rulers of states would, even today, protect their own power despite the international movements and morality of democratisation and humanitarianism. Weighing the human rights of the individual against the political imperative of a government, or the personal desire for power of an authoritarian ruler seems to favour the contention that the individual will lose every time. To presume that privacy is an expendable right, if the larger society can be persuaded that such invasion will be for the greater good, is neither morally nor legally acceptable. References Anderson, L. (2008) Antiquated before they can ossify: States that fail before they form. Journal of International Affairs, Fall 2008, vol. 58, no. 1(copyrighted to The Trustees of Columbia University in the City of New York) Boyle, M.W. (2003) The Challenge of Worldwide Migration. (translated by M.W. Boyle) Le Suisse et le Monde 3 The Federal Department of Foreign Affairs Switzerland: 2003 Devlin, P. (1965) The Enforcement of Morals. Oxford: Oxford University Press Hart, H.L.A. (1994) The Concept of Law Oxford: Oxford University Press, 2nd ed. Hart, H.L.A (1963) Law, Liberty and Morality Stanford: Stanford University Press Sloane, J. (1982) General Assembly Resolutions Revisited. British Yearbook of International Law Oxford: Oxford University Press Writer Unknown (2011) Supreme Court Rules Background Checks of NASA's Contractor Employees Legal available at The US Supreme Court Website http://www.supremecourt.gov/ and http://hr.blr.com/HR-news/Staffing-Training/Background-Checks/Supreme-Court-Rules-Background-Checks-of-NASAs-Con/?source=RSA&effort=4 Accessed June 19, 2011 Read More