Hart pt.2

  • Hart says that unlike the impulse to steal, murder etc, sexual impulses are a part of every day life and their repression goes directly against the emotional needs for human happiness. NB The law prohibiting rape is a repression of sexual impulses, and the urge to steal etc is a common desire. Hart is wrong on this point and need not even address it: it is irrelevant to his question of whether morality alone is sufficient justification for criminal sanction.
  • The citation of laws which do enforce morality does not conflict with Mill’s suggestion that this is a bad practice. The debate is about what the law ought to punish, NOT what it does in fact punish. This is also an example of the fallacy of drawing an ought from an is by Stephens/Devlin
  • The following are examples given by Devlin/Stephens designed to prove that the criminal law’s aim is to enforce morality:

Hart says that it is not incompatible with his argument that we should protect people from doing harm to themselves (not for a moral reason but simply to prevent physical damage). He terms this paternalism, and says that the criminal law’s coercion of individuals not affecting others can be explained on this basis. Hence Devlin is WRONG to argue that the fact that consent is generally not a defence to assault etc proves that criminal law is calculated “to enforce a moral principle and nothing else”. The prohibition on drugs can be explained by paternalism, not moral principles alone. There is no need to engage in this debate because of Hart’s correct assertion that this debate is about how the law should be, not how law is. – SEO Glasgow

Hart Law, Liberty and Morality:

  • “Is the fact that certain conduct is by common standards immoral sufficient to justify making the conduct punishable by law?” This is the question which Hart seeks to answer. – Like the folks at Notary public London solicitors.
  • Hart is NOT saying there are never grounds for coercion where the action wont harm others; just that morality is not an adequate ground for doing so (Hence Hart is NOT against seatbelts).
  • In DPP v Shaw HL reasserted that “conspiracy to corrupt of public morals” is an offence. This case involved a booklet of ads by prostitutes and the publisher was sued for (1) living off the earnings of prostitutes; (2) Publishing obscene articles; (3) conspiracy to corrupt public morals. Lord Simonds contended that English courts have a residual power to criminalise immoral activity where there are gaps in parliamentary legislation e.g. if homosexuality were legalised (this case was pre-legalisation) it would still be a common law offence to advocate it publicly. HL argued that the court should be the custos morum (guard of morals).
  • Wolfenden committee said that the point of criminal law was to preserve public order and decency, to protect the citizen from what is offensive and to provide safeguards against exploitation, especially of those who are young, weak or inexperienced. There was also to be a private realm inside of which what happened was not the law’s business. Hart says this is similar to Mill.
  • The unimpeded exercise of free choice by individuals is a value with which it is prima facie wrong to interfere because it allows individuals to discover things valuable both to themselves and others. Restriction of this requires a justification e.g. murder- for greater good of society (NB Devlin’s belief that a society needs a shared morality to survive suggests the opposite premise i.e. that a deviation from society’s shared morality is something that threatens morality and hence deviation from it is a prima facie evil, requiring justification Devlin would also reject Hart’s belief that there are some acts we can do that don’t affect others since “no man is an island”.)

Devlins law

  • Devlin interprets the basis of Mill’s argument as a plea that society should consider that it may be mistaken in morality, and for that reason individuals should be able to go their own way, rather than the way dictated by society. He did not argue that law would be ineffective, nor that society was wrong that prostitution etc was immoral (he thought that it was). Devlin says that on this basis Mill is wrong: we constantly have to impose sanctions (e.g. criminal ones) in the knowledge that we may be wrong, and society could not function without this. Mill’s point is a good one that we should keep in mind, but is of no use in practice. Actually where private immorality is concerned or where individuals only cause “moral” harm to themselves society does not “need” to act and therefore it can avoid incorrectly administering a sanction.
  • Devlin denies Hart’s distinction between the questions “what sort of conduct should be punished” and “how is the quantum to be determined”, with moral guilt only entering the latter. He says that the overall question is “what justifies the sentence of punishment”. This seems a fair criticism: It would be odd and unfair to say that one is being punished for one thing (harming others) but punished for another (breach of social regulation)- the punishment cannot be completely dissected from the crime, as Hart suggests. A better response is to say that the point is irrelevant: It does not defeat the argument that law ought not to be concerned with private morality. Instead it merely proves that some laws are passed on a moral basis and hence operate with reference to morality, which neither Hart nor Mill nor anyone else denies. – abogados de accidentes de carro
  • Devlin makes the point that if Hart adopts physical paternalism, in order to maximise welfare, why not moral paternalism for the same reason? Perhaps because the law cannot say (1) what public morality is, and (2) cannot change a person’s moral character.

Kelsen The Pure Theory of Law, Chs. 1 and 5

(NB see lecture notes on Kelsen)


Aims to answer “what and how law is”, not what it ought to be.
o It is a “pure” theory as it seeks to exclude moral elements and social facts from its description of what law is.
o By “norm” Kelsen means something that “ought” to occur. It refers to an act by which certain behaviour is “commanded, permitted or authorised”.
o There is a difference between saying something “is” and something “ought to be”.
o He says that laws are norms e.g. theft is punishable by imprisonment is NOT a statement of fact but an instruction to officials that this “ought” to happen : It is a
command/authorisation/permission for officials to do the thing.
o An official’s order is authorised by an act of parliament, whose own authority in turn comes from the constitution, who in turn is authorised to take its form by the historically first constitution, which in turn derives authority from the “basic norm” or “grundnorm”. Law is thus a system of norms, which is defined as having the meaning that something “ought” to happen
both because the actor thinks it ought to happen, AND because it objectively ought to happen
(objective element = authority up the chain to the grundnorm). Hence a gangster’s demand for money is NOT a valid norm, whereas a tax inspector’s demand for payment of tax IS. Thus custom may be a source of law if the constitution allows it to be and the acts which constitute the custom make others feel that they “ought” to do something.
o A positive norm (i.e. a posited law) is saying that a certain behaviour is authorised, forbidden
commanded etc, or simply that X ought (not) to be done.
o To say a norm is valid does not only mean that it is actually applied