Legal Moralism and Devlin’s Arguments
Legal moralism is a law theory that allows for the criminalization of actions that are deemed immoral. It is a principle that asserts that a law must act in the best interest of morality and that immorality should be a reason to make an action illegal. The state has a function to create and enforce laws that inculcate morality among citizens. The principle of legal moralism, however, does not claim that all immoral actions should be criminalized, but the immorality attached to an action can be used as a reason to illegalize the particular action. It is vital to note that legal moralism can be used to prohibit behaviors that can lead to conflicts between people and moral judgments of society even when such behaviors do not necessarily lead to psychological or physical harm to the members of the society. Therefore, when applying this principle, the freedom of a person can be restricted if in any case, it clashes with the societal definition of morality. Another provision of legal moralism is that it can allow the state to apply coercive power in enforcing the collective morality of the society.
Devlin delves into the matter of legal moralism and gives various insights that attempt to make people understand his perspective. In his first argument, Devlin asserts that where there is law without the aspect of morality, there is usually a danger of destroying the freedom of conscience hence paving the road to tyranny. He supported the idea that the moral fabric must be protected. He, therefore, added that the main focus of the criminal law is to reinforce and respect the moral norms belonging to the society which will be useful in keeping social order from destruction. In his argument, he acknowledges that the main reason why many societies disintegrate is because of the external factors and pressures. The main external factor that promotes this disintegration is the failure to observe common morality. When moral bonds loosen, it sets a center stage for the destruction of many societies. Therefore, he adds that it is the role of the society to protect their morals through the enforcement of the laws. In Devlin's view, any behavior has a potential threat to the social cohesion. Moral laws are there an essential part in maintaining the integration of the society. He uses the social cohesion theory to depict the survivability of society. The only area he fails to highlight is on whether it is necessary for societal views to be always correct.
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In his definition of morality, Devlin asserts that it is any behavior that any right minded person would consider immoral. He further claims that no theoretical limit could hinder the reach of the law. There are no acts that can be said not to be the business of the law. In justifying his remarks on the definition of the morality, he attempts to question what could be acceptable to the ordinary man, or the person in the jury box who might either be a reasonable man or a right-minded person. In reference to the jury, Devlin says that their verdict must be unanimous and they can only reach a determination if the issue has been extensively deliberated upon. Thirdly, the conception of the morality of an individual is enforced in the jury box. In what is referred to as the Devlin's guidelines, Devlin outlines three important things that can be regarded as the hallmarks of his arguments regarding legal morality. First is that privacy is an important matter and should be respected. Secondly, the law should play a critical role in intervening whenever the society is unable to tolerate certain behaviors. The third most important thing concerning his arguments enlisted in his guidelines includes the fact that the law is a minimum standard and should never be regarded as a maximum standard.
Hart’s Position on Legal Moralism
In his criticism of the legal moralism concept, he majorly bases his discussions on the dangers posed by populism. He questions why the morality of a few societal members be justifiable in preventing people from doing what they deem fit. He accuses populism of being founded on prejudice and superstition. In support of the 'harm principle' put forth by Mill, Hart asserts that most societies survive various changes in the basic moral opinions. Therefore, it is absurd to claim that when a change happens in the society, it has disintegrated and hence succession by another one has occurred. Both Devlin and hart raise vital issues as Devlin id more pragmatic and focuses on the majority interest while his counterpart hart is more individual and humanistic. Therefore in what is referred to as the disintegration thesis, Hart attempts to characterize the arguments of Devlin, hence giving arguments against it.
In the disintegration thesis where Hart criticizes the concepts put forward by Devlin, Hart says that Devlin’s conception of the society is unfounded. In his view, Devlin has confused what the definition of the word society ought to be. Devlin’s perspective on the society was that it involved a community of ideas, with common views on politics, ethics, and morals without which no society can exist. He quenches this argument by claiming that the populism mentality is unfounded and should not be used to define the society. The conventional ways in the society should not be equated to the law because, in his wisdom, the society should not be regarded as homogenous in terms of views, ideas, and other perspectives. Secondly, Hart argues that the prospect of decriminalizing a behavior that had in the past been regarded as immoral behavior is not necessarily a harm to the society's existence and long-term cohesion. Therefore, the assertions that are put forth by Devlin about immoral behavior cannot warrant the disintegration of the society as claimed by Hart.
In his criticism, Hart attempts to differentiate between critical and positive morality. He says that critical morality is a statement depicting what is considered morally true. On the other hand, positive morality, which is also called conventional morality, is a statement of what people perceive to be morally true. Therefore, Hart says that Devlin got it wrong on the positive morality approach. He further asserts that beliefs about moral concepts and matters are prone to change in the society. In the society, at one particular time people might have a consensus about a specific matter, but at another time, people might have sharp differences. It is easier for an issue to move from a matter of consensus to a matter of controversy. Therefore, hart questions Devlin on the validity of his thinking by asserting that the society's moral consensus could just be a matter of protecting the prejudices and unfounded opinions. Therefore according to him, such moral guidelines in the societies do not warrant to be used as laws. The two also disagreed on the Harm's principle where Devlin asserted that the harm Principle did not warrant to be regarded as the law's normative foundation. On the other hand, Hart claimed that difference must be drawn between paternalism and moralism. Also, the two differed on the matter of crime of bigamy as Devlin asserted that it undermined the harm principle while Hart claimed that Bigamy was only offensive because it interfered with people's religious rights.
Contrast the Disintegration Thesis with the Conservative Thesis
The disintegration thesis was put forth by Devlin in asserting that when lack of morality in the society is a threat to the integration, well-being, and long-term cohesion of the society. It calls upon the society to make laws that are against the popular beliefs, concepts, and ethics upon which the society is built. On the other hand, the conservative thesis claims that society has the right to enforce its morality with the aim of conserving communal values and the general way of life. Whereas the disintegration theory gives the ultimate power to the law enforcement agencies and recognizes their role in punishing immorality, the conservative thesis outlines that the role of enforcing the laws that breach the tenets of morality in the society is left to the community. The disintegration theory attempts to define the standards of what is regarded as morality by saying that it is anything that is thought of by a right-minded person. In the definition of the conservative thesis, it does not attempt to highlight on the societal perceptions of what is moral. As to whether the conservative thesis is correct, I would argue that it is because it outlines what happens in many contemporary societies even today. In its definition, it puts a claim that asserts that society is entitled to stamp its moral values with the aim of preserving the culture and values of the community. Many societies have persecuted people on the grounds of cultural tenets such as religion for the failure of adhering to the requirements that the society regards as moral.
