- 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 practice – need real feeling of reprobation. No soc can do w/out intolerance, indignation & disgust – these are forces behind moral law.
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