Harts Viewpoint Regarding the Legitimacy of a Person's Freedom - Case Study Example

HLA Hart: Concepts of Law Morality and law are synonymous in that criminal behavior such as violent acts and theft are easily and universally recognized as both. Laws are largely based on the collective conscience of the majority, the accepted morality of the prevalent culture. There is a necessary relationship between the concepts of law and morality. According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions. Morality and distastefulness is left to individual interpretation while laws govern all, which leaves society to decide whether those individual’s freedoms take precedence over what others find offensive, immoral or otherwise unacceptable behavior. Arthur was tried by a jury, but the decision was predetermined by the judgment of one person, The Secretary of State for Fashion. This begs the question, if morality is to be legislated, whose morality is legislated and who decides to what degree it should be interpreted and enforced? If 51 percent of the populous are morally offended by flared pants, so much so that lawmakers made it a capital offense, what happens to the rights of the other 49 percent of the population? At the time of the Wolfenden report in 1957, most UK citizens believed that homosexuality was immoral. The report made a distinction from criminal law and moralistic ideals by stating that there should be no ban on consensual homosexual acts. This idea was based on the ‘no harm’ theory; that is, a law should not intervene in a citizen’s private behaviour when no harm, physical or otherwise, has been inflicted on another (Prostitution Laws, 2004). Recently, of course, gay relationships have been sanctioned by the majority and thus, by the state. Many believe that morality can be based on disgust; therefore, society's general abhorrence of homosexuality is a sufficient basis for the legal prohibition of homosexual activity. Professor and philosopher H.L.A. Hart felt democracy itself is at stake in this debate. “No one should think even when popular morality is supported by an overwhelming majority or marked by widespread intolerance, indignation, and disgust that loyalty to democratic principles requires him to admit that its imposition on a minority is justified” (Sylla, 1998). Regarding the case against Arthur for the unlawful wearing of flared trousers in a public place, this is an issue that Hart would strongly oppose; not only the law in and of itself but the path of ideology that enabled this legislation. Hart was adamant in the belief that democracy cannot be fully realized when the rights of the minority are lawfully violated. This paper examines Hart’s viewpoint regarding the legitimacy of a person's freedom being restricted simply because it conflicts with society's collective morality and a discussion on moral obligations that conflict with abeyance and enforcement of an unjust law. In the 1960’s, the conservative viewpoint was championed by Lord Patrick Devlin who argued for the use of law to preserve morality and thus society itself. This philosophy recommended punishment for violating society’s morals which he ambiguously defined as being that which would disgust a ‘right-minded person.’ In this case, Arthur’s fashion choice, by law, disgusted a so-called right-minded person. Therefore, his act was deemed rebellious and immoral by society. The conservative viewpoint, though credible in its intent, is indefinite as to its parameters. This compels subjective judgments in criminal cases intended to relieve a person of their freedom. This viewpoint further held that criminal prosecution had the ability to alter individual behaviour with little to no regard for differences among cultures. Hart opposed this viewpoint explaining that immorality does not jeopardize society. Further, he argued the conservative stance implied that the morality of a society can't or shouldn’t change. Hart championed an individual’s right to be individual, by maintaining that there is no common morality in a multi-cultural society and we would have no freedom if we could only do those things a majority of others approved of. He thought it unfair that the conventional morals of a few should prevent others such as Arthur from doing what they want. These two clearly defined ways of thought regarding the making of laws has been the subject of much public and legislative discussion. 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 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 passed and last year, the Liverpool City Council asked for permission to establish a controlled prostitution area (Prostitution Laws, 2004). As society evolves, it continues to move toward a no-harm, no-foul approach in criminal law-making decisions, a movement Hart would have supported. Hart scoffed at the notion that society’s moral fabric would unravel unless criminal law was applied to enforce the morals of society thus defending social order itself. How such harm could be measured is a difficult explanation. Hart’s viewpoint held that societies are able to survive changes in basic moral values. As moral views are constantly changing, it is ridiculous to think that when a change in moral values occurs, a society has disintegrated and replaced by another. Although Hart, in his writings, conceded that some communal morality is crucial to the existence of society, he questioned the jump from there to the suggestion that a change in society's morality is tantamount to destroying it. When presented with the idea of a moral-based criminal law system, he continuously questioned who is to decide what is moral. Who is a right-minded person? Devlin defined common morality as what is acceptable to the ordinary man, the man in the jury box who might be called the reasonable man. A criticism of his argument from the beginning is it is not always clear what society deems to be moral and even if it were, is what society wants always correct, fair and equitable? Hart’s opponents imply that the morality of a society can't or shouldn’t change. Hart ascertained that a society's morality can change without the society disintegrating and a well-functioning democracy does not require the enforcement of uniform morality. Privacy can be balanced against the public interest in the moral order so that even private consensual conduct can be prohibited. 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 place of the opposing justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality. In Hart's view society may, for example, outlaw the public expression of bigamy or prostitution, because such could be considered an affront to public decency, as a nuisance. At the same time, 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. At this point, Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: "no social order which values individual liberty could also value the right to be protected from this type of distress” (Sylla, 1998). 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). The definition of harm varies widely between Hart’s and Devlin’s doctrines. The distinction of how a changing morality affects a society and what degree of harm it inflicts 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. Those who disagree with Hart believe that by allowing others to commit acts they think wrong yet are committed in private among consenting individuals will yet hasten moral decay leading to unchecked depraved anarchy in the streets. Hart conceded that people will do what they want whether it is lawful or not and to imprison a citizen for an act that affects no one but the consenting is immoral in itself. Hart went on to say that in order for a legal system to function effectively, the rules must be understood by 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. Vagueness or ambiguity of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws (Hart, 1994, p. 110). 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, p. 268). Is one morally obligated to comply with social rules whose benefits one has enjoyed or is one morally obligated to rebel against unjust laws? Colonial rule in India, as an example, was exploitative, economically devastating, racist, degrading, violent, and brutal. Were Indians obligated to respect British colonial law? Indians, in this case, were well in the minority of the ruling class, but certainly not the minority in terms of population (Lyons, 2001, p. 21). "Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individual rights and aimed at their protection" (Rand, 1964, p. 128). During the civil rights movement in the U.S., Martin Luther King said, “Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: 'How can you advocate breaking some laws and obeying others?'” (Watson, 2006). It has been said that an unjust law is no law at all. One has not only a legal and moral responsibility to obey just laws, but also a moral responsibility to disobey unjust laws. Should law enforcement officials blindly do their job or determine whether a particular law is just or unjust? Is their moral responsibility to protect the laws of the land or to judge what is right and wrong on a case by case basis? Surely they cannot be blamed for carrying through on orders from the government which are, by extension, orders from the people themselves. One who breaks an unjust law must do so with a willingness to accept the penalty of imprisonment in order to arouse the conscience of the community over its injustice. Hart would argue that Arthur is, in reality, expressing the highest respect for law. All the atrocities that Adolf Hitler committed were legal in Germany at the time as it was illegal to give comfort to Jews (Watson, 2006), yet today, no one would say that those laws should have been upheld by those who enforced them. Hart concluded that certain obvious moral-based rules should be intermixed into criminal law. The division of the two philosophies is a matter of where a person draws the line between civil liberties and societal control. All agree both aspects of life are essential to realize a stable, free, democratic populace. A violent crime, no matter how heinous, does not destroy the fabric of society. Murders take place everyday 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 fabric of society. A crime of discretion involving consensual adults, much less a bad fashion sense, would certainly affect society in a further diminished way than murder. Laws are written so as not to be vague. Arguments in opposition of Hart’s views are ambiguous and impossible to decipher much less legislate fairly. His view was of majority opinion when first spoken and, while now a minority opinion, it is still strong and vocal. The trend though, is toward individual independence rather than constraints. Lawmakers have altered rules regarding abortion, divorce, homosexuality and controlled substances since this high-profile dialogue was introduced. Only time will tell which philosophy was right. Some would argue that society has indeed unraveled since 1905. If we could see 2105, even the most liberal of us may be appalled, but the people of that time may be very comfortable in their lifestyle and moreover, believe themselves to be moral. The question of morality is a subjective discussion, but the law, by its very nature, cannot be. This is the major flaw in the opposing argument and why society has little choice but to evolve towards the Harm Principle. The ‘Bad Fashion Act 2004’ illustrates Hart’s no harm concept. Arthur refused to comply with a law he deemed unjust and for all the sense of righteousness he felt in his act of civil disobedience, he is just as dead. Being a martyr for individual freedom is indeed a noble gesture but how many others would do as well or even understand his reasoning? Hart would conclude that Arthur acted in what he believed a moral fashion by breaking a law while the judge, jury and executioner acted immorally by upholding that law. At least, that is the case if Arthur’s aim of civil disobedience was to change the law instead of just trying to circumvent it. If we conclude that just because something is legal does not make it ethical, we must also conclude that something is not necessarily unethical or immoral just because it is illegal. The political charge depends upon principles of right and obligation which cannot only be the creation of a majority’s will. Right and wrong is subjective and open to individual interpretation and certainly cannot be strictly defined within the context of illegal and legal. If the public was not outraged by the hanging of Arthur, the public deserves what it gets – no individual rights or personal freedoms and, as Hart would confirm, no democracy. Resources Hart, H.L.A. (1994). The Concept of Law. Oxford: Clarendon Press. Lyons, David. (2001). “Moral Judgment and Legal Theory.” Boston University School of Law. Accessed 27 January 2006 from Mill, John Stuart. (1885). On Liberty. New York: John B Alden, p. 9. “Prostitution Laws Facing Overhaul.” (16 July 2004). BBC News. Accessed 27 January 2006 from Rand, Ayn. (1964). The Virtue of Selfishness. Colchester: Signet. Sylla, Mary. (1998). “Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin.” University of North Carolina at Chapel Hill School of Law. Accessed 27 January 2006 from Watson, Paul. (16 January 2006). “Insights: Taking Guidance from Martin Luther King.” Environment News Service. Accessed 27 January 2006 from Read More