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”.)