The Hart/Devlin debate
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28 / M / UK
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Posted 3/17/08 , edited 3/17/08
Some preliminaries.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

-John Stuart Mill On Liberty 1859

The function of criminal law is to preserve public order and decency, to protect the citizen from what is offensive and 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.

-The Report of the Committee on Homosexual Offences and Prostitution (The Wolfenden Report 1957)

Conversely.

The punishment of common crimes, the gross forms of force and fraud, is no doubt ambiguous. It may be justified on the principle of self-protection, and apart from any question as to their moral character. It is not, however, difficult to show that these acts have in fact been forbidden and subjected to punishment not only because they are dangerous to society, and so ought to be prevented, but also for the sake of gratifying the feeling of hatred--call it revenge, resentment, or what you will--which the contemplation of such conduct excites in healthily constituted minds. If this can be shown, it will follow that criminal law is in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above-mentioned are important elements of human nature which ought in such cases to be satisfied in a regular public and legal manner.

The strongest of all proofs of this is to be found in the principles universally admitted and acted upon as regulating the amount of punishment. If vengeance affects, and ought to affect, the amount of punishment, every circumstance which aggravates or extenuates the wickedness of an act will operate in aggravation or diminution of punishment. If the object of legal punishment is simply the prevention of specific acts, this will not be the case.

-Sir James Fitzjames Stephen Liberty, Equality, Fraternity, 1873



It is known as the Hart/Devlin debate because of the two writers (Herbert Lionel Adolphus Hart and Patrick Arthur Devlin (Baron Devlin)) who made the debate famous by... publishing books at each other. ^^; None of these books are in the public domain, however, so I was unable to easily obtain them at 2:00 AM.

Basically the debate runs thusly:

Devlin argued in The Enforcement of Morals (1959):

There is a shared morality in each community (in Devlin's case he meant a morality derived from Christianity.) He argues that private behaviour should be regulated, that things done in private by people to themselves or other consenting persons that go against the public morality do in fact harm the community as a whole because it undermines the community's state of cohesion. If morality is weakened, it tends to lead to the destruction of society. The public morality, Devlin believes, will be shown through public outrage and the unanimous condemnation of a jury. "No society can do without intolerance, indignation and disgust"

Hart argued in Law, Liberty and Society (1963) that:

Humanity incorporates into it's legal systems a "minimum content of natural law" all systems have laws against theft, violence and unmitigated killing. However this is not an expression of common morality but rather of a necessity to prevent certain harmful acts. That is common to all groups, it is an embodiment of John Stuart Mill's Harm Principle. Further there can be no morality common to the entire populace, many societies are pluralistic in matters of morality (outside of the minimum content of natural law which allows society to function) "especially with regard to sexual morality, and that 'difference' in such matters is not necessarily harmful to society it could be argued to be beneficial".

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Which side of the debate do you fall on? Should society punish "the grosser forms of vice" based on a "shared public morality" established by "indignation and disgust"? If so who decides on what is moral? Or should the law intervene only when there is a risk of harm? If so what is the threshold?

Should the law intervene in areas of private morality?

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I have summarised the debate above and strongly believe that there is no public morality that can be common to one and all and that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” I consider harm to include physical harm, emotional harm or harm to another’s property. Society should not regulate a person’s freedom to do something which it feels is bad (morally wrong) if he only does it to/with himself or another and in a way that harms himself or another in the ways I mentioned above.
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27 / M / Los Angeles, Cali...
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Posted 3/17/08
sounds good to me. i'm siding with you on this one.
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28 / M / Why should you know
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Posted 3/17/08
Well anyone with common sense should come to the conclusion that laws baste on morals only lead to problems. Why becouse there will be conficts of intrest in were to stop with the laws. It would come to the government banning erotic books or porn becouse its" not right to see them". Eventualy as allways it would lead to the supresion of people. What was started out as a good intention for morals leads to the government becoming corupt itself, only passing more laws to further soldifie its power over the people. Theres nothing more a government would want than to have controll over its peopls private lives and behaver.

So I agree that laws should be passed on how much harm can be or was done.
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28 / M / UK
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Posted 3/27/08
Well I figured that at least one person would dissent.
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29 / M / New York
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Posted 3/28/08
In practice, I'm all for autonomy and individual rights. In theory, however, I may lean towards the opposite.

In terms of the purpose of laws (as well as the standards by which we can judge laws, i.e. whether they are necessary for civilization), I hold with Hart. In terms of what should be done, however, I run into a problem. On one end of the spectrum, we have anarchy, where people freely step on others because rights do not exist. Individual freedom is perfect, in a sense, but happiness is not guaranteed. Furthermore, anarchy inevitably leads back to structure. On the other end, we have (as far as I'm concerned) extreme communism, where individual freedom is completely denied for the sake of the group. Ideally, this breeds happiness in its enforcement of rules that benefit the masses while destroying those who resist. In practice, of course, we know this is not the case; however, with our technology developing as it is, I do wonder if it would not be best for the masses to be re-programmed as docile means to the end of society rather than ends in themselves (from the Kantian philosophy). Freedom might still be present, but all options not conducive to civilization would seem deplorable; more importantly, happiness could possibly be ensured. (As a Christian, Devlin would likely not support this; however, it is consistent with his quote by itself.)

Alternatively, at least in Hart's view if I'm getting the full story, we have the option of a society that merely punishes murder, theft, and violence, but we know this to be idealistic as well. Presumably, civilizations all over the world started out more or less in this fashion, and see what we have today; besides, this "natural law" is insufficient, especially when property or any other change is introduced--and the only way to stop change is to have rules in place against them, violating the very idea of a system with only these standards. Furthermore, societies of this nature are also the simplest, and it would be extremely unlikely that they could achieve what we have in terms of technology. (Then again, if everyone is happy, is this important?)

To remove pain from the equation and grant happiness to everyone at the cost of freedom--is it worth it? Is freedom really lost in the first place--are we only free if we are aware of all possibilities and accepting of more than one of them?

To exist in a society of very few rules--is it even possible for an extended period of time? Can natural change be prevented without more rules?

Granted that I spoken extremely idealistically and have falsely portrayed my two considerations as practical opposites, I lean towards the re-programming, assuming it becomes an option to us some day. If the duality is truly as simple as happiness vs. freedom, I'll take the former. With the way things are now, though, I'm basically fine with the status quo.
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Posted 3/28/08
The state makes the laws. That it does not base it on morality in itself can be shown in certain laws, like against forgery. This is something people care very little about. It is better shown in exceptions. Norwegian freedom of speech: you are able to speak about anything freely EXCEPT the government and its institution, the monarchy and the church (other laws include libel, censorship, silence due to profession, law against rioting, and a special unclear law for the army). There are studies on articles on how laws REALLY are passed in a national state. The theory that it is all based on people's morality simply doesn't work. All attempts to reform the mental health service because people want it to, has bungled now for 30 years. A pension law is coming up now as the basic pension is lower than ever, although most Norwegian people support equalit. Coincidence? Yeah, sure.

regulus: what's up with the anti-anrachistic views. First, there is no guarantee that people will step on each other's toes in an anarchistic society, in fact there are examples. Secondly, anarchy can also have structure. Anarchy means that there are no leaders or government working independent of people's opinions. It's ok to have it. There has been socities with very few rules, and it has worked. In fact there are some today. Like in Greenland. However, there is very little will to have such a society in advanced national states.

Let us not take the state out of the equation here. If we are to discuss the laws as they are now, the state has the major part, not the strange diffuse concept of "society". Society is just a concept. Some claim it is a philosophical one. Or that there are many, no real "society". The state is a reality.
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