Tag Archives: Mechanic

Devlin

  • Criminal law is based upon moral principle
  • Poses the question of what’s the connection b/w crime & sin, and to what extent, if at all, should crim law of England concern itself w/enforcement of morals & punish sin or immorality as such à Wolfenden report proposed no act of immorality should be made criminal unless it’s accompanied by some other feature, such as indecency, corruption, exploitation, and proposed to make consensual homosexual act b/w people legal.
  • law overlaps w/morality: e.g. treatment of consent in English law has always concerned itself w/moral principles: mainly not permitted to be used as defence b/c an offence against society. There are certain standards of behaviour or moral principles which society requires to be observed & their breach is an offence not merely against person injured but against soc as a whole = the basis of crim law.
  • In response to Mill: euthanasia, suicide, abortion, incest b/w brother & sister are acts which can be done in private & w/out offence to others, and don’t involve their exploitation or corruption, yet while some think the law on these requires reform, no one has gone as far as to say they should be taken out of crim law as matters of private morality. They can be brought within crim law by ref to moral principle.
  • Source of law’s authority to speak about morality/immorality + settling of principles which it chooses to enforce
  • As a matter of history, these principles derive from Christianity but dig deeper à the right of society to pass moral judgment = a collective judgment warranting intervention; i.e. public morality. g. if soc isn’t prepared to say homosexuality is morally wrong, the law has no basis for punishing a man for immoral earnings as homosexual prostitute. Private morality = private behaviour in matters of morals.
  • Society is made up of community of ideas, both political & about how members should behave & govern their lives à it has a moral structure made up of moral & political beliefs. g. whether man take more than one wife is something soc has to make up its mind on. Institution of marriage is an example of division b/w politics & morals & it would be gravely threatened if individuals judgments were permitted about morality of adultery. Society is held together by invisible bonds of common thought – if they were too relaxed, members would drift apart. Common morality is part of that bondage which in turn is a part of a price for society.
  • But beliefs about moral matter change! (Bix: at any time there might be some consensus on some moral questions, yet sharp division on others. Over time, any issue may go from being a matter of consensus to becoming a controversy: so how can we know that our laws are enforcing society’s moral consensus rather than simply protecting last generation’s prejudices against consensus forming around alternative position?
  • But it’s not possible to talk of private/public morality any more than it is of public/private highway – morality is a sphere in which there’s public & private interest, often conflicting, which must be reconciled. Impossible to put forward gen. principles – need toleration of max individual freedom consistent w/integrity of the soc, so that nothing should be punished by law that doesn’t lie beyond the limits of that tolerance. Not enough to say majority dislike the practiceneed real feeling of reprobation. No soc can do w/out intolerance, indignation & disgust – these are forces behind moral law.
  • Limits of tolerance shift but moral standards don’t (controversial!) – the extent to which soc will tolerate departures from them will vary from generation to generation
  • So Devlin recognised change only in terms of greater or lesser tolerance; however, when we’re respectful of religious minorities, we don’t see ourselves as being tolerant re deviations from the old rules of persecuting them; instead, we see ourselves as following a new rule that such respect is correct. So his assumption that changes in social convention = laxness in our tolerance of deviation indicates how much he confused conventional & critical morality argued for by Hart. He assumed there was some true moral thinking to which we’d always return – at the very least, this is bad moral history & moral sociology. Truth of the matter is that conventional moral opinion changes & may do so radically over time.
  • To what extent should society use the law to enforce its moral judgments?
  • The real question à limit of intrusion.
  • Since every soc has a moral structure, if that morality can be shown to be necessary to society, then it’s justified in using the law to preserve it in the same way in which it uses it to preserve everything else necessary for its existence.
  • Prostitution: all sexual immorality involves exploitation of human weaknesses. Prostitute exploits the lust of her customers & they exploit her moral weakness. If such exploitation is considered to create special circs, then this field of morality ought not to exclude the law.
  • Therefore, it’s not possible to set theoretical limits to power of the state to legislate against immorality or set in advance exceptions to general rule/define inflexibly no-go areas for the law. Society is entitled to protect itself from dangers, from within or without. So the question of what harm does a man do by getting drunk each night in privacy of own home can be met by a question of what society it would be if more than half of population did that.
  • Can’t set theoretical limits to no of people allowed to get drunk or gambling b/f legislating on drunkenness or gambling.

 

Rationale

  • Contra argument – no person is entirely isolated being & it’s impossible for him to do anything seriously harmful/permanently hurtful to himself w/out mischief reaching at least those near to him & often those beyond. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depend on him for some portion of their happiness but disqualifies him from rendering services which he owes to fellow human beings. He may also injure others by his example (misleading/corrupting their conduct) & ought to be compelled to control himself for their sake. Even where the consequences can be confined to individual, society ought not to abandon seeking to prevent conduct condemned from beginning of time – drunkenness, gambling, uncleanliness – things which experience has shown not to be useful/suitable for any person’s individuality.

 

  • Mill’s response – fully admits mischief which a person does to himself may seriously affect, through their sympathies & interests, those who are close to him & society in a minor degree à when conduct of a person violates a distinct & assignable obligation to any other person, the case is taken out of self regarding class and becomes amenable to moral disapprobation in the proper sense of term; e.g. a man through his extravagance becomes unable to pay of his debts or, having undertaken the moral resp. of having a family, becomes incapable of educating & supporting them – here, he may be duly punished: not for his extravagance but for breach of duty to family & creditors.

 

  • Whenever there’s definite damage/risk of damage to some other individual or society the case is taken out of the realm of liberty and is placed in that of morality of law. E.g. a man who causes grief to his family by addiction to drugs, deserves a reproach for his unkindness, but isn’t to be punished for that by law. No person ought to be punished simply for being drunk but a soldier should be punished for being drunk on duty. But w/regard to merely contingent or constructive injury which a person causes to society which neither violates his duty to the public nor occasions hurt to any individual but himself the inconvenience is one which society can afford to bear.

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Legal Enforcement of Moral Standards

Mill

  1. On Liberty
  • The sole end for which mankind are warranted, individually or collectively, in interfering w/liberty of any action is self protection. The only purpose for which power can rightfully be exercised over any member of civilised community, against his will, is to prevent harm to others. His own good, moral or physical, isn’t a sufficient warrant & he can’t rightfully be compelled to do/be prevented from doing something b/c it’s better for him/will make him happier/others consider it a better thing to do. These are good reasons for reasoning w/him or persuading, but not compelling him/causing him evil if he chooses not to listen. The only part of conduct for which anyone is amenable to society is that concerning others. In the part which merely concerns him, his independence is as of right absolute. Over himself, individual is sovereign (doesn’t apply to kids, barbarians).
  • People should be able to do different things – society isn’t to be made of people doing the same thing
  • Human liberty = 3 parts
  1. Inward domain of conscience – liberty of thought & feeling, absolute freedom of opinion & sentiment
  2. Liberty of tastes & pursuits – framing the plan of life to suit your character, doing as we like, subject to consequences which follow, w/out impediment from fellow creatures, as long as we don’t harm them
  3. Liberty within same limits of combination of individuals – freedom to unite, for any purpose, not involving harm to others

No society where these aren’t respected is free, regardless of form of govt. – must be free absolutely & unqualifiedly. The only freedom deserving of its name is that of pursuing our own good in our own way, so long as we don’t deprive others/impede their efforts. Each is the proper guardian of own health: mental, bodily & spiritual.

  1. On Limits of Authority
  • Individual should seize of that part which is chiefly for his own interest & society of that which is chiefly for its interest
  • Although soc isn’t founded on contract, everyone who receives its protection owes it a duty to:
  1. observe certain line of conduct by not injuring interests of others; and
  2. bear his own share, to be fixed on some equitable principle of the labours & sacrifices incurred for defending soc/its members from injury.
  • These two conditions society can enforce at all costs but, aside of them, the offender may only be punished by opinion only, not by law. As soon as any part of individual’s conduct affects prejudicially interests of others, society has jurisdiction over it à questions of general welfare then come into consideration. But until then, there’s no room for such questions & individual should have perfect freedom, legal & social, to do the act & stand the consequences.
  • Doctrine isn’t one of selfish indifference – it doesn’t pretend that human beings have no business w/each other’s conduct in life & shouldn’t concern themselves w/each other’s well-being. They owe each other duty to help to distinguish the better from the worse & encourage to choose the former, and should always stimulate each other to do good things but neither is warranted in saying to another he won’t do w/his life for his own benefit as he chooses to.

https://www.oxbridgenotes.co.uk/revision_notes/law-jurisprudence/samples/the-legal-enforcement-of-moral-standards