What Would Be the Best Form of Law in Order

Jurisprudence analyses what would be the best form of law in order to form a civil society where both individual liberty and normative goals are practiced. Should the aim of law be primarily focused on the protection of individual liberty or, instead, the normative goals aimed at the good of civil society? The laws in any society should not only be focused on normative goals it should also protect individual liberty.

From the perspective of the Hart Devlin debate which is the subject of this essay started in 1960’s, deciding whether law should enforce morality. Professor Hart and Lord Devlin debated about what the law ‘ought’ to be and whether morality should be enforced by law to form a good society. However the debate originated much earlier. A good start would be John Stewart Mill. Mill did not write specifically on law and morality, but the thesis put forward in his essay [1] constitutes a significant argument on the anti-enforcers side of law and morality because he believed in individual liberty.

Mill believes individual should be given liberty to do what they want unless they harm others. According to Mill, [2] liberty of an individual is the limits and nature of powers that can be legitimately exercised by the society over individuals. By this he meant protection against the tyranny of the political rules imposed on individual, [3] aimed at limiting the power of the rules used to exercise power over individuals. [4] Thus it contradicts the view that morality should be enforced by law as any imposing would lead to breach of individual liberty.

Conversely a view contradictory to Mill was articulated by J F Stephen. [5] Stephen stated that there are acts that are so disgraceful and malice that they must be prohibited. It was clear that by morality Stephen’s philosophy meant moral code destined by the governing class of the society during his time.

Further, the Wolfenden Report [6] debated whether law should concern itself along with enforcement of morals or the law relating to homosexual offences and the treatment of homosexual offenders by the court desires necessary changes. [7] The report was focused on two particular principles first; the function of criminal law regarding homosexuality was to preserve public order and decency protecting the public from injurious or offensive acts and protection of individual liberty. Second a realm of private morality which was not the law’s business.

The committee concluded that unless society made desirable attempts to lawfully equate the sphere of crimes in private morality which is separate from law will be exposed. [8] However this did not encourage pubic immorality rather homosexual behaviour between adults who consented should no longer be a criminal offence under Sexual Offences Act 1957. [9] Nonetheless two years later Lord Devlin [10] criticised this report in his book the ‘The Enforcement of Morals’. [11] Professor Hart [12] supported the general proposal of this report and attacked Devlin’s argument.

Professor Hart discussed the connection between crime and sin and to what extend should the law be concerned with the enforcement of morals and the punishment for immorality. According to Devlin there are certain moral principles aimed at the good of civil society and a breach of those morals is a social offence. Regarding these issues Lord Devlin put forward three questions.

First ‘Does the society have the right to pass judgement regarding morality? Ought there, to be a public morality, or are morals always a matter for private judgement?’ [13] In Devlin’s view public morality exists. A civil society does have the right to pass moral judgments and morality is not always a matter of private judgement.

Devlin’s second question was that if society has the right to pass judgement does it also use the law as a weapon to enforce it? Devlin said society does have a right and a civil society uses the law to preserve morality in order to safeguarding social morals. A civil society has an indefinable right to legislate against internal or external damages. [14] Further Devlin thought how moral judgement in civil society should be considered. To consider public morals the law is not looking for true belief but what is commonly believed by individuals in a civil society as a whole. [15]

The third question is whether the weapon of law should be used in all cases or in some cases? If not in all cases what should be in mind? [16] Devlin realises that citizens cannot be expected to social judgement on every aspect of their lives. Therefore their must be a balance between normative goals in civil social and individual interest. It is difficult to suggest how the balance ought to be struck. However Devlin believes there are certain principles that legislators should bear in mind which enacting law and enforcing morals.

Before a civil society does thing beyond the limits of tolerance judgement has to be purposeful where any act is dangerous. The legislature should also remember that the limits of tolerance often shift but that does not always mean that the standard of morals will also shift but the extent to what society will tolerate may be limited. [17] Devlin explained moral standard change from generation to generation so the law should intervene slowly striking a balance between individual liberty and the normative goals aimed at the good of civil society baring in mind as to what morality changes with time. [18]

Regarding Devlin’s third issue the legislators should remember as far as possible privacy should be respected. The purpose of law is to protect society, with this thought Devlin considers the Wolfenden Report to be wrong. According to Devlin the mistake in the report is crime and sin is placed under a single principle suggesting criminal law is there to protect individuals only.

The function of law is not only discharged by protecting citizens from crime. Rather there is a legal duty, to protect the liberal ideas of individuals in the community regarding, political, institutional and moral values which is the basis of a civil society. This makes a society a community of ideas about the way its members should behave and live. The proper function of law is to protect the society. [19]

Lord Devlin said the judgement of the ‘right minded people’ will prevail and immorality would be something which the ‘right minded people’ [20] considered immoral. Its morals standards are the standards of conduct of which a reasonable man approves. [21] Since the law does take into account turpitude in fixing the punishment for a crime it is reasonable that the law should be equally concerned with moral turpitude in deciding whether a particular act should be a crime. [22]

Professor Hart pointed out a noteworthy difference between the position of Stephen and Devlin. Devlin states law should enforce morality by protecting social essence for which the central part is morality. Steven believed that the preservation of morality puts an end to law irrespective of immoral act that does not harms anyone directly, or indirectly weakening a civil society. [23]

Lord Devlin’s views have their supporters and their critics. Among the earliest critics was Professor HLA Hart. Have identifies two issues before contradicting. The first is that he raises no objection to the law prohibiting immoral acts on the ground that the commission of the act causes an offence to others of a degree that turns the matter into public nuisance. [24] According to Hart it could be argued that act should be forbidden by law by virtue of Mill’s principles that coercions is justified to prevent harm to others, the harm in this case being the distress caused to others by the thought of what is being done behind closed doors. Protection against distress is separate from the facts that the others are acting in a way that you think are incorrect which cannot be acknowledged by individuals who values individual liberty. [25]

In support of Hart’s thesis, he identified few additional points. Hart first challenges Devlin’s argument that offences against the moral values make a society weak. Moreover Hart said that Devlin’s argument show no evidence to prove that sexual immorality by adult in private is something like treason that threatens society. [26]

According to Professor Hart, Lord Devlin has departed from the acceptable proposition that some shared morality is necessary for the continuation of the good of civil society but it is unacceptable that a society is indistinguishable with its morals at any time in history; therefore a change in moral codes is equal to the devastating. [27] The former view might be acknowledged but the latter is ridiculous as social values changes with time. It cannot be expected of any society to exist without evidence that the same societies moral values will not change. Looking at enforcement Hart found little evidence in favour of the idea that morality is best taught fearing punishment by law. [28]

Perhaps a theory that does not justify punishment as an action, but simply by crimes is much more reasonable and can only be comprehensible where crime harms others and both the wrongdoer and the victim exists. The evils of suffering added to the evils of immorality as punishment makes a moral good. [29]

Jurists who consider that law should properly satisfy its purpose, realistically by saying law should act to inspire and support morality. The moral conducts of any society changes over time through discussion and self-criticism, which is vital or peopled by the enforcement of the existence of legal sanction. [30]

Hart argues that the theories put forward by both Stephen and by Devlin are equally unsustainable. Stephen made a mistake by using conscious to maintain the moral status quo in any moment in a society’s history which would unnaturally take into custody the process that giving social institutions its own value. [31] Devlin is mistaken because he gave no evidence that enforcing morality is required to preserve a society. [32]

Professor Hart does not argument that members of civil society should follow moral standard but he believes this can be best achieved by discussion, advice and argument apart from law. Using the weapons of law to secure moral standards through fear or hatred of punishment symbolises the condemnation and social insult departing from moral values. The price of seeking to impose moral value by legal sanction in terms of punishment in turn results to loss of freedom. [33]

This is not the end to this debate their preoccupations are recharged on circumstances regarding which legislatures has made proposals relating to change in law about sexual offences. In 1962 G Hughes [34] suggests the weakness in Devlin’s views of the ‘right minded people’. The benchmark is the sentiment of ‘right minded people’ even through Devlin did not point out the ‘right minded people’. Perhaps another weakness is Lord Devlin’s theory is abortion as a crime. Devlin does admit that there are individuals who don’t think abortion is wrong. However it is evident that by morality here Devlin does not mean common views of agreement and disagreement rather the morality of the basilica group. [35]

Possibly, Hughes examines the existence of law in relation to Hart – Devlin debate about what the law should be linking explicit statement to form the values that the law is designed to protect individual liberty by carefully examining the damage of those values by behaviour that are illegal, and by cautious thought of the probability of effectiveness of restricted acts by law. [36] A criminal restriction can never be replaced thus careful test of social penalty regarding social behaviour should be preserved. If even after careful investigation it proceeds in a verdict opposing the majority then that minority feeling should be disregarded unless ignoring it would result in annoyance that is harmful than the proscription concerned. [37]

Nonetheless in 1966, [38] Professor Dworkin supported Lord Devlin’s assumption that a civil society has the right to safeguard its normative goals; against the conduct that majority members condemn regarding moral values. Dworkin also thought the weakness was in the doubt that exists regarding whether government can measure whether an attitude subsists and if it does, the question is whether it is reasonable. With regards to Devlin’s view on morality, Dworkin stated ‘what is shocking and wrong is not idea that the community’s morality counts but his idea of what counts as the community’s morality’ [39] .

In addition, 1967, B Mitchell concluded [40] that the proper purpose of law is not to only to protect individuals from liberty but also to protect the civil society as a whole. The morality that law takes for granted should be open to criticism and the debate carried out in the light of social reason and moral values. It is important that privacy should be appreciated as far as is possible.

Further, R.A Samek [41] in 1971 threw a fresh light to the debate when he showed that ‘enforcement of morality’ had four meanings. First, that every act that is immoral should also be an illegal act. Second, some immoral acts that lead to such acts are also illegal. Third, morality of few acts should be crucial when making them illegal. Fourth, an immoral act should be a crucial factor while making them illegal.

With regards to Samek views, it can be assumed that Devlin is not really supporting the enforcement of morals but only the enforcement of morals as a weakness meaning the closing stages of protecting the continuation of a civil society. [42] This can be dangerous practice as it results in the false impression that a legal system can purpose without the underpinning and the border of position of a morality, and it is pointless because ethical are sensitive issues put into most uncontaminated legal systems. It is more productive to imagine that the legislators and judges of a particular society to be craftsmen occupied to insert moral values forming law for the benefit of the particular society they serve. [43]

Further, the case of R V F Heuston [44] pointed out two specific limitations in Devlin’s argument. First Devlin has been unsuccessful to prove that disintegrated morality results in political breakdown and the enforcement of moral values are very important for the benefit of a civil society. Second, Devlin has also failed to consider that within any particular society at present there will possibly be a plurality of moral values and not accepting that may have a disastrous effect on society.

Another case of N B Reynolds [45] influenced the anti-enforcers of morality by pointing out the disadvantages of law in practice that is aimed at the inhibition of subjects that some people considered to be immoral. Reynolds pointed out victimless acts are generally supposed to be immoral, illegal and criminal. Thus, victimless crimes are often hard to enforce. Second, the price against enforcing the law against victimless crimes is usually higher than; social damage by generating black market for the price of prohibited goods and services is strained up and the crimes associated with the price of running black markets. [46]

Third, an individual perform actions which are no way moral and randomly degrades because the law makes such acts concerned against the law. Forth, the administration of the law for acts that are made unlawful by the government on ground of morality results in a weaker defence for society against discriminated. [47] Fifth, this power is very subjective that is why it leads to corruption and exploitation. Therefore the officers often accept bribes resulting in the criminal justice system becoming disgraceful.

This debate started in the 20th century. Perhaps in many western societies the law has a lesser role in enforcing morals. However, one must remember that there are some countries where no such debate is necessary because automatically it is understood that the proper function of law is to enforce morality. [48]

Possibly, while challenged the law certain actions, that are was previously forbidden on immoral grounds, ends being illegal. What probably happened is not the law stopping the enforcement of morality, but simply that the concerned acts have ended in the minds of the people of the community in the immoral sense. [49] The public opinion has fundamental changed on regarding private conducts. Thus a question now may arises is- do standards of morality with sufficient level of general acceptance was constructive for continuing for the state for the enforcement of morality still has existence? [50]

In 1997, a Report carried out by the Broadcasting Standard Commission concluded that “there was no national agreement on what is unacceptable, unsocial or even shocking”. [51] Even at present cases involving morality still come to court and a jurist may conclude that there are may still not support immorality but it is up to the legislatures and the judiciary to decide. [52] For example, the questions as to whether it is a proper function of the state to act against the availability of material considered to be pornography can still be argued on both sides equally as there are opinions for and against it. [53]

In the decade it has been an examination of a few practices in private that has been the centre of attentions on the question which is the major issue for discussion in the Hart – Devlin debate. [54] Lord Devlin in the enforcement of morals talks about the punishment of acts that are morally bad, rather than punishment of actions then failing to perform actions that are morally good. [55]

In 1990, twelve men who were members of a sado-masochistic group were charged with causing ABH [56] together with aiding and abetting. The twelve men had also carried out different types of weird practice. Several of them guilty pleaded and were given sentences regarding many others offences enthusiastic during the course of group action including the possession of drugs, keeping an uncontrollable house. [57]

In relation to sado-masochistic exercise it was held in R v Donovan [58] that where a charged for ABH [59] to the individuals harmed whether it was specific or implied the consent of the individual harmed would not be a defence except in inadequate number of situation, including those where individuals gave consent for a of surgery without medical grounds. [60]

If the judge remembered to pursue the principle at the centre of Mill’s essay on liberty whether it was explained how individuals behave themselves in private without harming others was their own problem, which should not be open to anyone else to pass a pending sentence. If Lord Devlin view is followed in relation to the restraint of subordinate being part of the law’s business as the containment of revolutionary activities. It may be considered that the behaviour may not be spared for punishment where consent and privacy are irrelevant. [61]

In occasions where sentence is imposed proves that the judge’s observation reflects Devlin’s observation, not Mill’s view. At present either 3 years or 2 years 9 months sentence is imposed regarding sentences sado-masochistic activities. Suspended sentences were given to the accused that were part of solely masochistic. The Law Commission in its consultation paper in 1996 [62] stated that the law should not prevent adults who consented to damage or pain regarding religious issues or sexual issues. [63]

The question raised by R v Brown (and others) [64] concerning sado-masochistic between adults who consented to it in private was whether sado-masochism was immoral, if they were whether it was the purpose of the state to restrict them. If it was not the purpose of the state to restrict them immorality in the court does not scrutinise on matters regarding morality. Nevertheless it is the purpose of the state to exclude them on the basis of paternalism or on some other bases regarding public policy. [65]

In R v Brown, [66] it was demonstrated that not only is it necessary to discuss whether the law should enforce morality, but also the issue that are predictably focused on jurisprudence that does not comprise of compartments, because the case could be a centre of discussion in many different areas. [67]

Certainly the question remains at present [68] while incorporating the legal principles both in the ECHR [69] and HRA 1998 [70] and moral values are appreciated. Further in UK’s society the law within the provision on Art 10 [71] expresses that the freedom of expression should be subject to limits that are necessary in a democratic society in the interests for protecting morality and individual liberty in order to form a health society. [72]

Individuals who follow the view of Devlin and believe it would be an end to society unless morality existed. Professor Hart believes privacy should be respected and imposing morality by law would create discomfort for individuals. In practice, however, it is very difficult to define a perfect society as it takes all kind of people to form a society with different ways of thinking. Moreover if morality is generously imposed protecting individuals liberty and normative goal protecting civil society, possibly it would form a healthy society, if not a perfect one.