“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”.)