Law and its foundations always have a particular connection with morality, especially in the contexts of society. While morality is generally determined as a kit of principles and values guiding individuals’ decisions and behaviors, the law is invented to maintain and promote shared ethics, primarily by defending people. Nevertheless, there were various controversies about the social role of law and its significance for bolstering moral code, including the Hart-Devlin debate. The objective of this paper is to examine the extent to which Professor Hart and Lord Devlin agreed that the law should criminalize harmful actions. The analysis will be supported by relevant theories and laws, such as the theory of utilitarianism, the Harm Principle, tort law, and others.
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The Summary of the Debate
The Hart-Devlin debate took place after the Wolfenden Committee allowed homosexuality and prostitution in society. In 1957, the Committee advised that private consensual sexual activity should be decriminalized, relying on the Report of the Committee on Homosexual Offences and Prostitution of 1957.1 The Report states that the criminal law should preserve public order and defend citizens from what is considered injurious and offensive but do not interfere in their private lives and impose a specific behavioral pattern. Therefore, the given laws hold to the conviction that the law is not responsible for immorality in society.
In reaction to that conclusion, Lord Devlin, following an idealist’s approach to the laws’ functions, argued that laws should maintain and control social morality in addition to the protection of people. This is because morality is the foundation of citizens’ adherence to legislation and rightful behavior. In particular, Devlin stated that it was requisite to employ the law if a person’s behavior achieves boundaries of indignation, intolerance, and disgust in respect of other people.2 Following this idea in relation to the Wolfenden Committee’s recommendation, it can be inferred that since homosexuality and prostitution provoke loathing in the majority of the population, these norms of behavior should be banned. Hence, according to Devlin’s view, morality should be under the patronage of the law that, in turn, should control citizens and inculcate them a specific behavior, including through enforcement of conventional ethic norms.
In contrast, Herbert Hart supported the Committee’s recommendation and responded to Devlin’s arguments concerning the application and role of the law. Resting on the philosophy of legal positivism, he claimed that the law should not comply with populism principles and the majority’s ethical norms since their perceptions and ideas are frequently impure with prejudices, biases, and superstitions. Instead, the law possesses only one role is to protect people from harmful or dangerous actions of offenders. Hart based this statement on Mill’s “harm principle,” affirming, “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.”3 Since harlotry and homosexuality are deliberate actions agreed between involved individuals, which do not cause evident harm to third parties, they can be allowed in society. Moreover, Hart believed that debauchery and immorality could not be totally eradicated from society, including using laws. The main task of the law is to prevent the tangible adverse effect of specific deeds on society. Therefore, Hart denied the necessity for enforcing a moral code since it contravenes individual liberty and rights.
One of the results of the Hart-Devlin debate was a new concept called “legal moralism” that comprises two arguments such as “the moderate thesis” and “the extreme thesis.” According to the first thesis, society is entitled to impose its morality to avert societal decay. This thesis is best expressed in Devlin’s opinion that society “is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart.”4 The second specifies that society should enforce ethical norms to save its distinctive way of life and values. In this regard, concerning the first argument, Hart claimed that it did not and could not have sufficient research-based support, including empirical studies.5 Hart also rejected the second idea, asserting that it justified enforcement of moral principles simply because they are widespread, not beneficial. He adds that such enforcement can retard or even cease positive changes in social morals and understandings. Overall, the commonplace for two disputants is that the law should protect society from wrongdoers and prevent crimes.
Devlin’s View on the Law
Besides considering the law in general, in his book The Enforcement of Morals, Devlin discussed other legislation fields such as contract law, tort law, and “quasi-criminal law.” He considered that contract law focuses primarily on pragmatic intentions connected with commerce, not on morality. Hence, contractual obligations to fulfill immoral acts should be unenforceable. Devlin also thought that tort law was slightly related to morality as tort liability usually does not depend on the agent’s moral fault. Quasi-criminal offenses imply conduct that was not immoral inherently, for example, driving on the wrong side. In this regard, he recommended that punishment should be implemented only for offenses caused by inherently immoral conduct. Thus, it can be concluded that the core of Devlin’s and Hart’s disagreement is their discord on the definition of immorality’s essence. Hart believed that immortality is more related to the outcomes of behavior, while Devlin regarded it in behavior itself.
It is worth noting that Devlin’s views on the role of law concerning the criminalization of harmful actions are consonant with the theory of utilitarianism. This moral perspective asserts that all economic, social, or political decisions should bring benefit, pleasure, or happiness for individuals and favor the improvement of society.6 If the results of particular actions adversely affect a group of people, these actions should be averted.
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Hart’s View on the Law
In the framework of the discussion, it is worth considering Hart’s views on the law exposed in his book The Concept of Law. Specifically, Hart thought that the law principally consists of primary rules (or rules of conduct) and secondary rules (or empowering rules).7 Primary rules imply laws that supervise public behavior by outlining legal obligations and the consequences of disobeying. An illustrative example of such rules is the law against murder, which prohibits its commitment and provides respective severe punishments. Secondary rules allow the power to build sovereignty and modify or enforce primary rules. These rules include the rules of change, the rules of recognition, and the rules of adjudication. For instance, the rule of recognition validates specific laws or statutes by ensuring that it corresponds to all established standards and tests. The rules of adjudication enable persons to decide the question of whether the primary rule has been violated on a particular occasion. Altogether, Hart argues that laws are rules created by people and that the inherent association between law and morality does not exist, which contradicts Devlin’s statements.
The most significant contribution to the Hart-Devlin debate was made by Joel Feinberg, who in-depth analyzed the conceptions of moralism, harm, offense and drew a dividing line between harmfulness and wrongfulness. Feinberg states that the criminal law is reasonable in forbidding harmful behavior only when this behavior is wrong as well. In this respect, he determines harm as an infringement of a person’s interests, whereas wrongfulness is an encroachment on the right to defend such an interest.8 The harm of limiting an individual’s interest in freedom can be justified merely when this individual has wrongfully invaded the interest of another person. For instance, rape is a criminal misdeed irrespective of whether it inflicts harm to a victim because it invades others’ sexual autonomy.
The paper has explored the Hart-Devlin debate and their views on the issue of the criminalization of harmful actions. The dispute arose on the Wolfenden Committee’s recommendation to decriminalize homosexuality in prostitution in society. Devlin decisively objected to this conclusion, asserting that the law should defend social morality and forbid actions that provoke disgust and intolerance in the majority. On the contrary, Hart stated that the law should not be attached to prevailing ethical norms because its central function is to protect people from offenders and their harmful actions. Nevertheless, mutual agreement between Hart and Devlin was the conviction that if particular acts or decisions possess harm to other individuals, the law should avert or punish them.
Cane, P., ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’, The Journal of Ethics, vol. 10, no. 1, 2006, pp. 21-51.
Devlin, P., The Enforcement of Morals, Oxford, Oxford University Press, 1965.
Hart, H.L.A., The Concept of Law, 2nd edn., Oxford, Clarendon Press, 1994.
The Internet Encyclopedia of Philosophy, Act and Rule Utilitarianism [website].
The Stanford Encyclopedia of Philosophy, The Limits of Law, E. N. Zalta, 2006.
- P. Cane, ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’, The Journal of Ethics, vol. 10, no. 1, 2006, pp. 21.
- The Stanford Encyclopedia of Philosophy, The Limits of Law,
- E. N. Zalta, 2006. Web.
- P. Cane, ‘Taking Law Seriously,’ p. 22.
- P. Devlin, The Enforcement of Morals, Oxford, Oxford University Press, 1965, p. 10
- P. Cane, ‘Taking Law Seriously,’ p. 23.
- The Internet Encyclopedia of Philosophy, Act and Rule Utilitarianism [website]. Web.
- H.L.A. Hart, The Concept of Law, 2nd edn., Oxford, Clarendon Press, 1994, p. 94.
- P. Cane, ‘Taking Law Seriously,’ p. 25.