Hart Devlin Debate – Jurisprudence Notes

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Background Facts:

Wolfenden Committee had to prepare a report on the issue of legalising homosexuality and prostitution.  The Report came in favour of legalisation as it stated that the law need not concern itself with immorality. HLA Hart, Lord Patrick and Lord Devlin took part in the debate.

The primary reason for the decriminalisation of homosexuality was on basis of:

  • Freedom of choice
  • Privacy of morality

Devlin’s position

  • Law without morality destroys freedom of conscience and is the paved road to tyranny.
  • He talked about society’s ‘moral fabric’ which the society holds together and if the criminal law does not respect and reinforce society’s morality it will destroy the ‘moral fabric’ leading to the disintegration of society.
  • Any category of behaviour that is capable of posing a threat to social cohesion can be governed by morals laws. They are justified as they protect society against the disintegrating effects of actions that undermine the morality of a society.
  • There is no limit of reach of la and thereby immorality could also be governed by law. (Immorality is what every right-minded person considered immoral)
  • Devlin suggested that common morality could be determined from asking ‘what is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right-minded man’.
  • Devlin thus made following recommendations:-

o   Privacy should be respected.
o   Law should only intervene when society won’t tolerate certain behaviour.
o   Law should be a minimum standard not a maximum standard.

Hart’s position

  • Hart‘s position was based on Mills harm principle. (No act should be interfered with it unless it affects the rights of another person)
  • He warned against dangers of ‘populism’ and was against the view of imposing majoritarian perception of morality over the remaining members of the society.
  • Hart also stated that a mere change in moral views does not lead to disintegration of society.
  • Hart’s approach is much more individualistic to that of Devlin.

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