Example research essay topic: Patrick Devlin And Morality In The Law - 1,920 words

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First we must state clearly the questions to be examined, these could be loosely put in It is important to state Devlin's case as much debate has sprung from, and refers to it. In 1959 Patrick Devlin gave a lecture, later published as, "The Enforcement of Morals" concerning whether morality ought to be protected by the law. He begins equating morality with religion and its distinctions between good and evil. Religion states immorality is sinful.

Should the criminal law concern itself with enforcement of morals and punishment of sin; what is the connection between crime and sin? Devlin refers to the "Wolfenden Report" which looked particularly at the area of homosexuality and legal enforcement of morality. In their finding the Wolfenden committee put forward the following; "Our own formulation of the function of the criminal law so far as it concerns the subjects of this inquiry... is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.

It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined. " [Ref: 1, p. 2 ] The Wolfenden committee recognised an realm of personal or private morality, and indeed immorality. They felt it important that both society and the law give the individual freedom of choice and action in that no act of immorality ought to be a criminal offence unless accompanied by other publicly offensive or injurious features such as public indecency, corruption or exploitation. Devlin criticised using the term 'private morality', and prefered to term individual behaviour that was not in line with public morality, (as he felt all morality was) as being 'private behaviour'. Immoral private behaviour ought to be tolerated unless it is injurious or causes public offense.

He also asked what is meant by freedom of choice and action, is it freedom to decide for oneself what is moral and immoral or society neutral, or is it freedom to be immoral if one wants to be? Devlin argued for the latter as he felt society must be a community of ideas, both politically and morally: shared ideas about ways people should behave and live. Devlin felt that moral standards are derived from religion and claim validity from that religion. He wrote, "It may or may not be right for the State to adopt one of these religions as the truth, to found itself upon its doctrines, and to obey and deny any of its citizens the liberty to practise any other. If it does not, then it is illogical that that it should concern itself with morals as such.

But if it leaves matters of religion to private judgement, it should logically leave matters of morals, also. A State which refuses to enforce Christian beliefs has lost the right to enforce Christian morals. " [ Ref 2: p. 5 ]. Devlin felt that in a secular, or pluralistic society, the state criminal law must justify its provisions independently of religious morality, of what is and isn't 'sinful'. The smooth functioning of society and the preservation of order require that some activities be regulated. Rules for this purpose rarely involve a choice between good and evil, being designed for uniformity and convenience. Crimes of violence offend against both moral law and criminal law, and social order.

English law would not recognise the consent of the victim as a defense, (except where it is an essential element of the crime, such as rape). Devlin accounts for this by saying, "There are certain standards of behaviour or moral principles which society requires to be observed, and the breach of them is an offence not merely against the person who is injured but against society as a whole. " [Ref. 1, pp. 6 - 7 ] Devlin believed there is a justifiable case for collective judgement only if society is affected. Without a collective judgement there is no case for intervention, individual opinions of disagreement or disapproval do not make something a social matter. He also felt it is not possible to set theoretical limits in advance, or define areas of morality outside the law inflexibly or rigidly. If the morality changes the law can also follow to reflect the change. How are moral judgements to be ascertained?

By gaming the opinion of the majority, or the consent of the individual? Devlin opted for deciding by the morality of common sense, also termed the 'standard of the reasonable man' (person). Laws should be principles every 'right-minded " person would accept as valid, that which any twelve persons drawn to the jury box, after discussing, might agree upon unanimously. Devlin felt the law must strive to strike a balance between the rights and interests of society and the individual, and when in conflict the two must be reconciled. "There must be toleration of the maximum individual freedom that is consistent with the integrity of society. " [ Ref. 1, p. 17 ] Both the limits of tolerance, and the extent of departure from moral standards vary from generation to generation.

There are many who feel the danger to society must be balanced against the extent of the restriction. Judges and legislators show reluctance to sanction invasions of privacy in the detection of crime except when action is invoked by an injured citizen. When all involved are consenting adults and 'injury' is only to morals, to personal beliefs being offended, then the public interest in the moral order can be balanced by claims of privacy. Devlin's main points are; - the law exists for the protection of the individuals and institutions of society, - the law exists for the protection from; injury, annoyance, corruption and exploitation, - law must be derived from the sense of 'wrong' and 'right' in the community as a whole, - the proper concern of criminal law is with minimum standards of behaviour, and moral law with the minimum standards, - if convincing moral training is lacking the administration of the law suffers, - morality is the set of standards of which the reasonable person approves, - if morality changes, then the law may follow to reflect the change, when its inevitability and stability has been documented as incorrectly timed change leads to instability.

Devlin has been criticised as being too conservative by some, too radical by others, and some allege incompletely dealing with aspects important to the issues. Since 1959 when Devlin wrote "The Enforcement of Morals", and perhaps partly because of it, there have been changes in attitudes to moral debate. There is an emphasis towards tolerance of private behaviour of consenting adults. The 1977 report of the Royal Commission on Human Relationships stated; .".. 24) Throughout our inquiry we encountered many areas of genuine moral conflict, areas where it could not truly be said that the law represents a general consensus of what acts should or should not be punished. in such cases, it is our view that the law should not attempt to be the arbiter of moral values, but should take a neutral stand. 25) Increasingly morality has to become the preserve of the individual, making responsible choices in the knowledge of the consequences of actions and regard for the well-being of those affected. This implies that human beings are able to act together on the basis of individual moral decisions united in a harmonious social whole.

Such a view depends on tolerance, rather than dogma, and requires knowledge and understanding. Some continue to see social diversity as synonymous with moral decay and social collapse. A major irony of their fear of permissiveness is that it leads to a situation where knowledge itself is not permitted, but is suppressed in the interests of stability. 26) The diversification of society parallels the growth of participation by individuals in affairs that touch on them, and the extension of questioning into previously forbidden areas. Questioning implies two things: the right of the questioner to know the answers and the possibility of change if the answer is not adequate. " [ Ref: 2, Volume 1: Law and Morality, p. 25 ] These observations are equally accurate for Australia today, a society where both ethical and cultural pluralism exist. In pluralist societies there are problems with deciding on and defining a morality which maximises good and prevents or minimises harm, as there are likely to be conflicts. In the chapter, "Ethical pluralism and moral education" Kurt Baier addresses such problems, and gives a formula to check if the demand that a morality should be acceptable to everyone is justifiable.

He states that acceptable answers must be provided for three central questions as follows; 1). Why should there be restrictions by social rules? 2). Why should they be these rules rather than others? 3). Why should one follow these rules when they can be broken without consequential punishment or injury to the 'offender'? Baier says that if the answers provided are not acceptable the morality taught will appear, ... "not as a necessary condition of the good life but as an unnecessary evil. " [Ref: 3, p 95 ] Therefore there is reason to adopt a morality if one has found adequate reason in the circumstances, and if one has found no stronger reasons for refraining or doing something different.

However, Baier makes a distinction between the sphere of 'private morality', which he describes as those areas that do not attract public moral sanctions but are self-regulatory. He says that what does no empirical harm to others should be considered private morality. Where there is a need for a common course of action then at least some of us must compromise our moral convictions. To resolve interpersonal conflict we can resort to settlement by public morality.

Baier gives examples of, ... " those for which public morality should provide a uniform solution as well as public moral sanctions, but to which legal sanctions should not be attached, (honesty, promise-keeping, adultery); and those for which there need be no uniform moral solution and no public sanction... legal or moral, (smoking, self-indulgence, timidity). " [Ref: 3, p. 105 ]. This seems to go along with J. S. Mill's argument that interference with ones liberty of action is justified only to prevent harm to others. However, the concept of 'harm' is controversial and needs qualification and definition.

Is harm restricted to physical injury or suffering - or is it also to cover what is 'offensive', such as 'public indecency'? If so, who sets the standards and on what criterion? In his book, "Law, Morality and Religion in a secular society", Basil Mitchell examines Professor Hart's definitions and answers to the above questions. Prof. Hart counters the claim for a need for the law to protect citizens from what is merely offensive by saying, .".. That such distress is not 'harm', (or at the most) that it is 'harm' but so slight as to be outweighed by the misery occasioned by the punishment. " [Ref: 4, p. 54 ] He goes on to say that anyone who recognises the value of individual liberty would not value depriving of liberty of action on the grounds that it merely causes them distress...

Research essay sample on Patrick Devlin And Morality In The Law