Example research essay topic: Patrick Devlin And Morality In The Law - 1,883 words

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... s from being offended. He goes on to criticise the Wolfenden committee's wish to use the law 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. " [Ref: 4, p. 54 ].

br> He asks; is not safeguarding against 'corruption' the protection from moral harm, and should the law to have the right to protect any adult from what is termed corrupt? We should draw a distinction between physical good and moral good. The scope of legal paternalism should be to protect physical good - necessary for existence, and that the questions of moral good should be self-regulatory, as when legal paternalism is extended to them they become 'victimless crimes'. There seems to be general agreement that children should not be encouraged towards accepting or behaving in certain ways. Basil Mitchell demands further justification of this by saying, " It is necessary to show - a) that the law's interference in the case of children is not prompted by a concern for their moral welfare, b) that in cases where such concern is admitted it does not presuppose any judgement as to the relevant behaviour among adults. " [Ref; 4, p. 56 ] He goes on to say the reason the law prohibits sexual intercourse with a girl under sixteen is to protect her from corruption - taken from the moral law against sex before or outside of marriage, and that it is in conflict with, and in contradiction to the law prohibiting marriage with a girl under 16 except by petition to the court. There may be a physical consideration behind this law, as well as the issue of exploitation.

It has long been observed that females who become pregnant in adolescence have increased risk of complications during pregnancy and childbirth, and that due to the enormous drain on their bodies and hormonal changes they may not develop physically to their full potential capacity. If the mother is very young her physical growth will be ''nipped in the bud's o to speak. Moral concern has guided the development of criminal laws, but if they can be justified on non-moral grounds they should be maintained after the moral laws (which brought them into being) become irrelevant. In "Social Philosophy" Joel Feinberg explores many relevant issues concerning 'rights', and the law's grounds for coercion. Feinberg states, " Most societies have recognised that there are some relatively permanent desires present in all men that must be singled out, given precedence, and made sacrosanct. " [Ref: 5, p. 24 ]. When recognised and protected by law, these are rights.

Which interests are determined in this way are decided in accordance with established value judgements of each community. Feinberg extends J. S. Mill's idea that the state has the right to make criminal directly injurious conduct, (such as wilful homicide, assault and battery, and robbery) to include that which weakens public institutions we all have an obvious, solid, direct stake in, such as tax evasion. Interest is defined as something you posts, even when diminished; one can help or hinder another's individual interest in; bodily health, safety and security of one's person, family, friends or property.

Feinberg says some interests are more important than others and deserve legal protection to avoid harm to them. He states not all harms cause hurt. This is because not all harm is noticed, and if not noticed it does not hurt. In some cases the whole harm is in the knowledge of it. (For example: finding out about a spouse's isolated act of infidelity - if it was 'safe sex'). Hurt encompasses not only physical pain but also mental distress.

However, if the distress is not likely to be followed by further harm to other interests it is probably to trivial to warrant coercion to prevent or punish it, eg. hurt feelings. Some offences are harmless, they do not lead to any further harm of interests other than the one being offended. According to Feinberg, offence and hurt are, .".. harms of a relatively trivial kind, (unless they are of sufficient magnitude to violate interests in health or peace)... but harm of such a trivial kind that it cannot by itself ever counter-balance the direct and immediate harm caused by coercion. " [Ref: 5 p. 28 ].

Feinberg also makes another distinction, between harm and merely failing to benefit another. We harm them when we deny or deprive them of something they need, especially something needed to survive. We merely fail to benefit them when we deny or deprive them of something they do not need. This 'unmet needs' criterion can be applied to determine when a damaged interest becomes actual injury. There is also a difference between being in a harmful condition, and undergoing a change in a harmful direction to one's condition. Feinberg provided some useful definitions of what constitutes harm and hurt.

He extended Mill's ideas on individual liberty and gave us a more succinct justification for legal coercion when harm is done to important interests, not merely offence to individual beliefs. Devlin's points, and the composite criticisms of Hart, Mitchell and Feinberg clarified for me the meaning of Nietzsche's statement that morality is like sign language, in that one must know what it is to benefit from it. Conclusion: In moral issues concerning behaviour which is merely 'sinful' or offensive, without further harm to important interests such as health or safety, the criminal law should not have the power to intervene or use legal coercion. Victimless crimes involving individuals' choice of personal morality should be outside the realm of criminal law, considered private behaviour.

Our legal system does not enforce Christianity, or any other religion, therefore public or legal morality should be concerned with that which causes harm, and not merely offence to others, and keep out of private consenting adult behaviour. John Stuart Mill's assertion that the only justification for limiting one person's liberty is to prevent harm to another represents a starting point in the discussion, but his principle is not universally accepted within the philosophical community and certainly is not applied in the real world. Private consensual homosexual behavior is a recurring focus of this debate: it was the focus of the governmental report in Britain in 1965, which prompted Lord Patrick Devlin to explore the issue, and remains a common example of private activity which society seeks to regulate solely on the basis of its immorality. Joel Feinberg A more recent review of the issue comes from Joel Feinberg. 26 In the last volume of his series The Moral Limits of the Criminal Law, Feinberg criticized Devlin's argument as simply a series of confusions over "sometimes" and "always": he said that although society is a community of ideas in some sense, it does not follow that society must always share moral beliefs. "We cannot live together without any agreement, but it is not the sole alternative to no agreement that there be total agreement. " 28 Devlin's "social disintegration thesis, " as Feinberg called it, seems to assert that society should view any change to the present morality, not just any morality, a threat; morality as it exists must be wholly preserved. Devlin confused the need to preserve some common morality to some extent with the preservation of a specifically defined morality, the present morality, in its entirety. 29 The resulting problem is how to define the present morality. Feinberg pointed out that if morality is defined by reasonable people who may be racists or would-be witch burners, Devlin's argument is absurd; to avoid this absurdity Devlin would have to establish criteria for reasonableness beyond just the will of the majority of members of the community. 30 Although Feinberg conceded that the criminal law may take morality into account, for example by lengthening sentences based on greater moral blameworthiness, contrary to Devlin he maintained that this does not justify morality invading all of the criminal law. 31 His argument likens the criminal process to "a great moral machine... [t]he question the liberal raises about this moral machine is: 'which actions should cause their doers to be fed into it?' , and his answer is: 'only those actions that violate the rights of others. '" 32 Although the criminal law does serve a moral purpose it does not follow that the criminal law's only legitimate purposes are moral ones, and that all more purposes are equally legitimate as reasons for criminalization.

H. L. A. Hart Devlin's relatively simple argument has met with much opposition. The first response came from H.

L. A. Hart, an American professor, who disputed Devlin's thesis saying that it assumes that immorality jeopardizes society, when in fact there is no evidence of that proposition. 13 While Hart conceded that some shared morality is essential to the existence of society he questioned Devlin's leap from there to the proposition that a change in society's morality is tantamount to destroying it -- that society is equal to its morality 14 -- because that implies that the morality of a society can't change, or rather that if it does one society is actually disappearing, and being replaced by another. 15 According to Hart, Devlin's argument amounts to an assertion that law should preserve existing morality, not that legal enforcement of morality is a good in and of itself. 16 By contrast, Hart asserted that society cannot only survive individual differences in morality but can profit from them, though he does not specify exactly how it might profit. 17 Finally, he said that even if there is a valid argument for the legal enforcement of morality, Devlin's argument as to how that morality should be ascertained is flawed: .".. no one should think even when popular morality is supported by an 'overwhelming majority' of marked by widespread ' intolerance, indignation, and disgust' that loyalty to democratic principles requires him to admit that its imposition on a minority is justified. " 18 Hart's view of the connection between society and society's morality is more flexible than Devlin's. A society's morality can change without the society disappearing and democracy does not require the enforcement of uniform morality, as Devlin suggested. In place of Devlin's justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality based on a distinction he drew between immorality which affronts public decency and that which merely 'distresses' others based on the knowledge that immoral acts are taking place. 19 In Hart's view society may, for example, outlaw the public expression of bigamy 20 or prostitution, 21 because such could be considered an affront to public decency, as a nuisance, 22 while it would not be justifiable to outlaw purely private manifestations of these types of behavior, or of consensual homosexual behavior in private, 23 even though some might claim to be distressed by the private behavior as well. 24 At this point Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: "[n]o social order which values individual liberty could also value the right to be protected from this type of distress.

Research essay sample on Patrick Devlin And Morality In The Law