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How Hart and Devlin would assess R. v. Butler In a contemporary society it is sometimes very difficult to estimate right what is moral and what is not. Our feelings, emotions and the way of living changed greatly thats why sometimes it is impossible to take one correct decision following the letter of the law.
The case, proposed to examine, provoked hot debates between conservatives and liberals. Donald Victor Butler was accused in 1992. He was charged for selling and renting hard core videotapes and magazines. Butler opened the Avenue Video Boutique in August, 1987, in Winnipeg, Manitoba. He sold and rented porno materials as well as sexual paraphernalia. Though some warning measures were taken.
It was pointed that the store only for adults. Persons under 18 years were not allowed to enter as well as those for whom sex oriented materials were offensive. Soon, the City of Winnipeg Police seized the entire inventory and later, after the store was reopened, arrested the owner. Butler appealed to the Supreme Court of Canada but was charged with various counts and lost appeal in Supreme Court in 1992.
Much attention was focused on the phrase undue exploitation of sex. With the purpose to discover how the undue exploit of sex can be definite several tests were made. There were 3 of them: Community Standard of Tolerance test, Degradation or Dehumanization test and Internal Necessities test or Artistic defense. However, the appellant was convicted by the trial judge and he was imposed fines of $ 1, 000 per offence. As it was pointed the case was discussed in different political and social circles. There were four main positions in those debates: social conservative, social liberal, pro-regulation feminist and anti-regulation feminist.
Debates between conservatives (represented by Patrick Devlin) and liberals (H. L. A. Hart) were based on discussing law and morality. From the first sight these notions seem to be equal but they are not identical.
Morality is determined as a code of private right or wrong, good or evil behavior, while law is a public code of behavior. It may not consider with right and wrong. It is oriented to efficiency. Morality is based on informal social rules while law should always be expressed in precise language. It uses formal rules of the state & courts. It goes without saying that norms of morality can be changed and are not absolute.
Thats why it is always difficult to follow contemporary morality as law should do. In the given case it was pointed that morality depends on the level of society and changes over time. Sometimes law is slow to respond to moral standards change. The debates between P. Devlin and H.
L. A. Hart were based on those differences. P. Devlin emphasized that there should not be separation of public and private morality. So, law (public) and morality (private) must interact closely.
Devlin insisted that immoral behavior of a single person can cause harm to the whole society. He rejected strictly private morality, and regarded immorality as treason. It was said that even if none is harmed persons behavior can be crimes. As to R.
v. Butlers case Devlin considered that the appellants actions of consuming pornography threat to society because they offend moral standards. P. Devlin was sure that criminal law should be improved including all aspects of sexuality. P.
Devlin's opponent, H. L. A. Hart, based his arguments on the right to freedom of expression. He proved that legal intervention into private morality must be diminished. He did not see equation between immorality and treason.
Hart pointed the necessity of individual freedom thats why he was against strict measures to regulate or censor pornography. The decision made in R. v. Butlers case was regarded as an intervention into private morality and the violation of the right of freedom.
So, debates around R. v. Butler regarded two issues. From one side it was pointed harm made by pornography, from the other side - potential harm of legal regulation.
As for me, I think there is no one answer in support of one of the opinions. Moral norms have changed greatly since that time. The attitude, towards what was bad and wrong as to the selling of hard core videotapes and magazines, is not the same. But from the contemporary point of view it would be better to support Harts arguments. Nowadays interference with freedom of expression would be placed the first. There are several other objections to the case.
One of them is a lack of proof of harm and harm to women. Harm means to act in an anti-social manner. There is no direct link between obscenity and harm to society, thats why harm, caused with selling or renting hard core videotapes and magazines, changes in attitudes and beliefs. Generally, if it is for sure sex with violence it will be determine as undue exploitation of sex.
But degrading or dehumanizing sex will be considered undue only if it creates a risk of harm. Some parts of society consider that any kind of pornography cause harm to society because violate its moral norms. Section 163 of the Code is designed for preventing harm to society. It is based on a fundamental conception of morality that is grounded. A fundamental conception of morality consists of concrete problems such as life, harm and well-being, but pay less attention on the differences of opinion or taste. The other objection concerns the violation of freedom of expression.
Section Two of the Canadian Charter of Rights and Freedoms guarantees "fundamental freedoms" and was taken in 1982. The freedoms are freedom of expression, freedom of conscience, freedom of religion, freedom of thought etc. but the freedoms can be limited by the section 1 limitations clause. Thats why the right to freedom of expression, we are speaking about, can be changed by governments and can prohibit some types of expressions that cause harm. As it was said earlier direct harm in R. v.
Butlers case was not proven, only hypothetical. Thats why there were no reasons for restrictions. So, the freedom of the expression should be taken into account as the most important point of litigation. The law is very important and has the biggest impact on Canadian society.
The last that should be regarded is the evolution of criminal law. It should be flexible and reviewed. The base for extensive judicial analysis was the community standards test. But Community standards are contemporary. They depend on times and ideas. If we take for example the Victorian era, our age can be considered a liberal one, because we have the relative freedom and can discuss questions of sex.
Many aspects of sex are freely discussed in books, magazines, movies and television. In earlier days it could be considered as indecent and intolerable. These present-day attitudes should not be ignored and should be taken into account with criminal law. Examining R. v.
Butlers case, it became evident that legislation only fulfilled the function of a guard of the morals of society instead of protecting a fundamental freedom. In given case the form of expression should not be number one. Its content is more important. From this point of view, the content of all video cassettes were within the scope of freedom of expression. In a free and democratic society it would not be right to regard the material as obscene. It is clear, that the judiciary should make law not only interpret it.
Taking into account several important purposes, it should be said that the proscription was not correct in some points. The proscription made against the undue exploitation of sex presses freedom of expression even more than is necessary. It did not take into account those who wish to see sexually explicit movies. R. v. Butler decision on pornography was one of the leading decisions made by Supreme Court of Canada.
It proved that decision taken must be regulated not only with the letter of law but also with changeable contemporary norms of moral in a certain society. In R. v. Butlers case the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Section 163 of the Code preventing harm to society.
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