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.