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