Lord Patrick Devlin: "Morals and the Criminal Law" 1958

Lord Patrick Devlin:

"Morals and the Criminal Law" 1958

2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?

There are a few exceptions , a few provisos, a couple of quid pro quo...

A: It seems a priori true that if society has a right to decide on a “public morality” in order to preserve itself, then that society has the right to use the law as an instrument in enforcing its morality. So, short answer: yes.

-The main issue, obviously.

- Bit of slippery slope. You have to show me, with better evidence than he provides, that legalizing something like homosexual acts or doctor assisted suicide is going to lead to the undermining of a general principle that society has to have in order to function. We allow capital punishment, war, and other things that take human life. What’s the difference?

- Problem with response to question one: It’s all well and good to try and make the standard seem objective by declaring that only things that harm society are the jurisdiction of the law, but who decides which things affect society? To what degree does a thing have to affect society before it crosses the threshold?

- Who gets to decide what exactly the balance between public and private interests is? How do we allow for change? Societies change, as do their moralities.

- Report fails by trying to identify a principle around which you can base a theory of moral legislation.

- Devlin: no single guiding principle. Prostitute example in the Report. This is his chief problem with the report.

- In fact, the state has the power to use the law to regulate morality wherever it needs to protect its own integrity.

- Treason Example and internal corrosion

- “If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it? But suppose a quarter or a half of the population got drunk every night, what sort of society would that be?” (184-5)

Left: Artist's rendering of a hypothetical society where a quarter of the population gets drunk every night.

Fig. 1, above: Devlin's personal sketch of the hero in Orwell's 1984.

Devlin's Presentation of Legal Moralism

- Paper written in response to the Wolfenden Report, which recommended decriminalizing homosexual acts between consenting adults.

- The Report explained that there are certain areas of morality that are, "not the law's business."

- Devlin disagrees. He argues that some sort of moral conformity is essential to society's existence. "Society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is necessary to its existence."

Other things necessary to society's existence:

1. Has society the right to pass judgment at all on matters of morals?

The Three Questions

Military

Tupac

Reality TV

A: No.

- Must be immoral as decided by the reasonable man standard.

- Must be detrimental to society.

Once those are satisfied, though, go hard in the paint.

- Devlin decides to ask himself three questions in order to work through his theory.

1. Has society the right to pass judgment at all on matters of morals? Over which things does societal law have jurisdiction?

2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?

3. If so, ought it use that weapon in all cases or only in some; and if only insome, on what principles should it distinguish?

- Euthanasia Example: human life as a cornerstone of society.

“Society means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist.”

Devlin made the controversial decision to leave out a fourth question regarding the airspeed of unladen swallows and society's right to set speed limits for them.

3. In which cases should it pass judgment and use law to achieve its ends?

A: Society may exercise legal muscle at its discretion. In the question of law and morality, and the freedom of an individual to be immoral, we face the same issues as in any other question of man vs. state. And, as in those cases, the law must find a balance.

"IF WE LEGALIZE GAY SEX, SOCIETY WILL CRUMBLE!"

-Actual Quote from Lord Devlin (kind of...)

- Highway Example.

“Each have rights over the whole, and that if each were to exercise their rights to the full, they would come into conflict, and therefore the rights of each must be curtailed so as to ensure, as far as possible, that the essential needs of each are safeguarded.” 185

"Just as you wouldn't talk about a public or private highway, you can't talk sensibly about a public and private morality."

No word yet on the philosophical ramifications of a Highway to Hell.