Enforcing Morality as Law - Essay Example

It is Immoral to Enforce Morality as Law Should society as a whole adopt a consensus morality enforced by laws and subsequent punishment? Those opposed to civil unions may argue yes but public opinion has answered no. The recent law allowing homosexuals to legally join represents a gradual shift of legal philosophy towards John Stuart Mills’ “Harm Principle” as outlined in his influential1859 work, “On Liberty.” Mills argued that an adult should be allowed to do what they want to do provided that their action does not cause harm to someone else. The 1957 Wolfenden Committee report, in line with this thinking, recommended that “there must remain a realm of private morality and immorality that is ‘not the law’s business’” in its Report of the Committee on Homosexual Offenses and Prostitution (Kipnis, 1977, p. 44). Lord Patrick Devlin, then a British judge, disputed the report published while he sat the bench arguing for the use of law to preserve morality and thus society itself. Devlin recommended punishment for violating society’s morals which were ambiguously defined as being those behaviors that would disgust a ‘right-minded person.’ Professor and philosopher H.L.A. Hart opposed Devlin’s viewpoint explaining that immorality does not jeopardize society and that Devlin’s stance implies that the morality of a society cant change. The understanding of these viewpoints is paramount to society as a whole as controversial topics such as euthanasia, drugs and prostitution continue to be introduced to revision of law. The Wolfenden report (1957) made a distinction from criminal law and moralistic ideals, specifying that there should be no ban on consensual homosexual acts based on the ‘no harm’ theory – a law should not intervene in a citizen’s private behaviour when no harm, physical or otherwise, has been inflicted on another. As a result of the debate that followed, the Abortion Law and Sexual Offences Act of 1967 passed in the UK followed by the Divorce Reform Act in 1973. In 1998, The Human Rights Act was approved and last year, the Liverpool City Council asked for permission to establish a controlled prostitution area (Prostitution Laws, 2004). Hart, the Wolfenden report and Mills have championed an individual’s right to be individual, an increasingly attractive proposition to many. Devlin believed that criminal prosecution had the ability to alter behaviour in both the individual and the society in general. If the aberrant behaviour wasn’t rectified in a public and punishing way, it was Devlin’s belief that society’s moral fabric would simply unravel. It was necessary, therefore, to apply criminal law to enforce the morals of society, thus defending social order itself. Hart, on the other hand, maintained that there is a common morality in a multi-cultural society, but that we would have no freedom as civilized human beings if we could do things only the collective whole approved of. (Hilgendorf, 2005). Hart, in his writings and debate with Devlin, conceded that some communal morality is crucial to the existence of society but questioned Devlins jump from this concept to the suggestion that a change in societys morality is tantamount to destroying it. When presented with the idea of a morally-based criminal law system, who is to decide what is moral is the question begging to be asked. Devlin answer is a “right-minded person.” He defined common morality as “what is acceptable to the ordinary man, the man in the jury box who might be called the reasonable man” (Hilgendorf, 2005). An immediate criticism of his argument begins with determining what society deems to be moral as this is almost never clear. Devlin implies that the morality of a society cant or shouldn’t change. Devlin felt privacy can be balanced against the public interest in the moral order, even private consensual conduct could be prohibited. On this issue, Hart did agree with a partial enforcement of morality. He based this pliability on the issue on a distinction he drew between immorality which offends public modesty and that which merely concerns others based on the knowledge that immoral acts are taking place. In Harts view society may, for example, outlaw the public expression of bigamy or prostitution, because such could be considered an affront to public decency or as a nuisance. However, he maintained it would not be justifiable to outlaw purely private manifestations of these types of behavior, or of consensual homosexual behavior in private, even though some might claim to be distressed by the private behavior as well. (Sylla, n.d.). The center of Hart’s argument is the “Harm Principle” extrapolated from John Mill’s composition 100 years earlier. “..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” (Mill, 1885). Devlin, surprisingly, agreed with this premise. The distinction of how a changing morality affects a society and what degree of harm it inflicts upon it versus the rights of individuals to live as they please without fear of repression is a long-standing debate in all parts of the world over a long period of time. Hart conceded that people will do what they want to do whether it is lawful or not. To imprison a citizen for an act that affects no one but the consenting individual, Hart said, is an immoral act in itself. Hart went on to say that in order for a legal system to function effectively, the rules must be understood by all those individuals to whom they apply. If the rules are not sufficiently clear, then there may be uncertainty about the obligations which have been imposed on individuals. (Hart, 1994). Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals. However, moral rules cannot always be changed in the same way that legal rules can be changed (Hart, 1994). The division of the two philosophies is a matter of where a person draws the line between civil liberties and societal control. A violent crime, no matter how heinous, does not destroy the fabric of society. Murders take place every day in every nation, yet civilized people carry on in a civilized manner before, during and after the horrible incidents. If that is true, neither does a crime against another’s moral stance destroy the moral fabric of a society. We, as a society, are continuously growing toward tolerance in both our legislation and our minds. Evidence of this fact exists in the laws enacted since the historic debate between Devlin and Hart on these issues. Lawmakers have altered rules regarding abortion, divorce, homosexuality and controlled substances since this high-profile dialogue was introduced. It is this inability to specifically define these subjective moral values that emerges as the major flaw in Devlin’s argument. Although the ‘no harm, no foul’ concept is equally subjective in its flippant succinctness, it is at the same time easily understood to relate to serious individual harm caused by another’s actions. If no serious harm has been inflicted, it becomes difficult to prove a crime has taken place. Because of the ease in which the concept is both understood and applied, it is natural for society to evolve toward the ‘Harm Principle’ as opposed to the ideals espoused by Devlin. References Hart, H.L.A. (1994). The Concept of Law. Oxford: Oxford Clarendon Press, p. 110. Hilgendorf, Eric. (15 April, 2005). “Morality and English Law.” University of Wurzburg. Retrieved 30 December, 2005 from < http://www.jura.uniwuerzburg.de/lehrstuehle/hilgendorf/materialien/MORALITY%20AND%20ENGLISH%20LAW.pdf> Kipnis, Kenneth. (1977). Philosophical Issues in Law. New Jersey: Prentice-Hall. p. 44. Mill, John Stuart. (1885). On Liberty. New York: John B. Alden, p. 9. Prostitution laws facing overhaul. (16 July, 2004). BBC News. Retrieved on 30 December, 2005 from < http://news.bbc.co.uk/1/hi/uk/3898009.stm> Sylla, Mary. (n.d.). Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin. University of North Carolina at Chapel Hill. Retrieved 30 December, 2005 from Read More