JURISPRUDENCE

ON

The Hart-Devlin Debate: Relevance in Current Scenario

Submitted To:

Dr. Kaumudhi Challa

Faculty of Jurisprudence

SUBMITTED BY:

Nikhil Parthsarthi
Roll no. 91

SECTION A

SEMESTER VI,

B.A. LLB(HONS.)

SUBMITTED ON:
November 29th, 2018

1
 DECLARATION

I, Nikhil Parthsarthi, have undergone research of the project work titled “The Hart-Devlin
Debate: Relevance in Current Scenario”, as a student of Jurisprudence hereby declare that-
this Research Project has been prepared by the student for academic purpose only, and is the
outcome of the investigation done by me and also prepared by myself under the supervision
of Dr. Kaumudhi Challa, Hidayatullah National Law University, Raipur. The views
expressed in the report are personal to the student and do not reflect the views of any
authority or any other person, and do not bind the statute in any manner.
I also declare that this Research Paper or any part thereof has not been or is not being
submitted elsewhere for the award of any degree or Diploma. This report is the intellectual
property of the on the part of student research work, and the same or any part thereof may not
be used in any manner whatsoever in writing.

Nikhil Parthsarthi
Roll. No. 91
Section A

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 CERTIFICATE
This is to certify that Mr. Nikhil Parthsarthi, Roll Number-91, student of Semester- VI of
B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “The Hart-Devlin Debate: Relevance in
Current Scenario”,in partial fulfilment of the subject Administrative Law. His performance
in research work is up to the level.

Place: New Raipur ………………………… ……………………………

Date: 29.11.2018 Dr. Kaumudhi Challa.

(Faculty- Jurisprudence)

Hidayatullah National Law University, New Raipur, Chhattisgarh

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 ACKNOWLEDGEMENTS
I feel highly elated to work on the project “The Hart-Devlin Debate: Relevance in Current
Scenario”.The practical realisation of the project has obligated the assistance of many
persons. Firstly, I express my deepest gratitude towards Dr. Kaumudhi Challa, Faculty of
Jurisprudence, to provide me with the opportunity to work on this project. Her able guidance
ship and supervision in terms of his lectures were of extreme help in understanding and
carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would
be grateful to receive comments and suggestions to further improve this project.

Nikhil Parthsarthi
Roll. No. 91
Section A

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 TABLE OF CONTENTS

Declaration .............................................................................................................................................. 2
Certificate................................................................................................................................................ 3
Acknowledgements................................................................................................................................. 4
Chapter 1: Introduction .......................................................................................................................... 6
RESEARCH METHODOLOGY .................................................................................................................... 7
CHAPTER 2: The Legal Enforcement of Morals ....................................................................................... 9
CHAPTER 3: Devlin’s idea about the law and morality. Conservative law ............................................ 12
CHAPTER 4: Hart’s view of The law as a minimum of morality. Liberal law ......................................... 15
MAJOR FINDINGS .................................................................................................................................. 18
CONCLUSION......................................................................................................................................... 20
BIBLIOGRAPHY ...................................................................................................................................... 22

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 CHAPTER 1: INTRODUCTION
Would it not better, if the law was rather based on the so called shared morality than e.g. only
on the harm principle? Such a morality that would be a basis of the law requires from people
much more than the harm principle. The problem is how to make people morally better, how
to preserve a traditional morality, a shared morality, the morality of the majority of one
society.

According to Devlin (Morals and the Criminal Law), morality is a foundation of society and
its existence. Without social common morality there is no society. Everybody knows what is
moral and immoral – people have moral feelings and feel its immorality of behaviour in
conscience: “Immorality then, for the purpose of the law, is what every right minded person
is presumed to consider being immoral”. If society takes aim at being alive and exists not
only by the generation time, morality must be respected and the law must be based on the
society's morality. If you break this common morality, you must be punished, because your
immoral act may influence on members of your society and you yourself. Immoral acts such
as abortion, prostitution, fornication or homosexual acts must be forbidden by the law then.
There is no private and public morality, too. Integration of society and its uniformity seem to
be a central point of Devlin’s thought. Unlike Devlin, Herbert Hart (Immorality and Treason)
underlines that there are many personal moralities in society. Hart stresses that a man is a part
of society and cannot live without society. But according to Hart, not every immoral act must
be legally punished. He maintains that “No doubt we would agree that a consensus of moral
opinion on certain matters is essential if society is to be worth living in”. Hart gives examples
of legal prohibitions of murder or theft. Hart thinks that if prohibitions of abortion or
homosexual acts are enforced by the law, then morality, which is perfectionist, seems to be
the foundation of law, what is against a pluralistic society. He thinks also that Devlin's theory
of social morality is based on irrational emotions and moral tyranny. The Clapham omnibus
is not the Christian one yet, Hart would say.

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 RESEARCH METHODOLOGY
PROBLEM

The project research deals with the Hart-Devlin Debate and its Relevance in Current
Scenario.

RATIONALE

The rationale is also to analyse the value of public morality in law in general. Should we
protect public morality by law? Why? What is public morality then? The debate showed us
some universal insights on this value.

OBJECTIVES

• To study the Hart- Devlin Debate.

• To study the relevance of Hart- Devlin Debate in present scenario.

HYPOTHESIS

One of the most famous legal discussions was the Devlin-Hart debate in the late 1950s in
England. It seems that even nowadays not only liberal but also conservative aspects of
understanding the law are still important for the law-makers (freedoms and rights v. tradition
and integration).

CONCEPTS

Public morality refers to moral and ethical standards enforced in a society, by law or police
work or social pressure, and applied to public life, to the content of the media, and to conduct
in public places.

NATURE OF STUDY

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
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SOURCES OF DATA

This project is largely based on secondary & electronic sources of data. Books, case laws,
journals & other reference as guided by faculty of Jurisprudence are primarily helpful for the
completion of this project.

CHAPTERISATION

Chapter 1 has introduced the research project by giving a brief introduction of the Hart-
Devlin Debate.

Chapter 2 deals with Devlin’s idea about the law and morality.

Chapter 3 focuses on Hart’s view of The law as a minimum of morality.

TIME SCHEDULE

This project report has been prepared in a course of two days.

CONTRIBUTION OF RESEARCH

This research seeks to highlight the relevance of the Hart- Devlin in present scenario.

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 CHAPTER 2: THE LEGAL ENFORCEMENT OF MORALS
The enforcement of morals through legal sanctions is not a new topic to legal philosophers. It
has, in the past decade, been the object of a new and thorough examination, though it is still
open to further discussion. The "new morality" of the second half of the twentieth century
will also contribute to keep the fire alive as a result of the widening gap between the
traditional Christian morality and the morals that modern society seems increasingly prepared
to accept and tolerate. Morality implies a basic reference to the distinction of what is right
from what is wrong. Various moralities differ as to the extent of what is right and what is
wrong, or good and bad, and therefore, each community, nation or society may have its own
morality, according to the local beliefs, whether social, political, religious or other. Moreover,
the expressions "morals" and "morality", though broad in meaning, have too often been
understood to have a close connexion with sexual morality. Legal and philosophical writers
are not always careful to indicate that although the main illustrations of moral problems are
generally taken from sexual morality, morality remains fundamentally a classification of what
is right and wrong. More sophisticated definitions of morality have also been worked out in
the debate on the distinction between law and morals. Following the utilitarians of the last
century,1 Professor H.L.A. Hart proposes two working definitions of morality:2 "positive
morality", or the morality actually accepted and shared by a given social group, and "critical
morality", which may be defined as "the general moral principles used in the criticism of
actual social institutions including positive morality". Hart then proceeds to examine the
question of powers issued the writ of Certiorari for quashing the action. the legal enforcement
of morals as one of "critical morality about the legal enforcement of positive morality". The
term "enforcement" also needs some clarification.

The legal enforcement of morals means, in practice, the separation of crimes from sins. There
are two main instruments to ensure the enforcement of morals: statutory legislation and
judge-made law. When the legislator adopts a statute regulating some aspect of morality, the
enforcement of morals is seen as a matter of policy at the political level: no government is
likely to adopt a law that does not satisfy the moral conscience of the population. The actual

1
Austin, J., The Province of Jurisprudence Determined, (London, 1954), ed. by Hart, pp. 11-12, 125427.
2
Hart, H.L.A., Law, Liberty and Morality, (1263), Vintage Book ed., p. 20, hereinafter cited as Hart.
9
enforcement of such a law can also be a matter of policy, either political or merely
administrative. But when the legislator remains silent on some aspects of the legal
enforcement of morals, the courts have often stepped in, and reaffirmed their right and duty
as custos morum of the people. In those cases, the legal enforcement of morals is not a matter
of political policy but of mere interpretation of what is right and wrong, as assessed by expert
witnesses and stated by a jury, subject to the revision of the higher courts. Their judgement
and opinion will, therefore, constitute the yardstick that will be used to measure what society
is or will be prepared to tolerate in the field of morality, and to what extent it is prepared to
accept the legal enforcement of morals. But why should society care for the legal
enforcement of morals in the first place? Is the right to punish or to impose sanctions an
essential or natural right of society? What is the purpose of punishment, and, in any event,
does punishment yield sufficiently good results to warrant its use and that of the legal
apparatus needed to administer it?

In some instances, as it will be shown, the legal enforcement of morals is a farce, and
sometimes a nuisance, because certain crimes are undetectable and certain prohibitions are
simply unenforceable. It would, therefore, seem right to say that however necessary it is to
legally enforce some aspects of morality, if the law cannot supply the appropriate weapons, it
is better to leave the area unregulated rather than to adopt unenforceable rules. But let us face
the question as a whole, and see how the problems of legal enforcement of morals actually
arise. The recent years have provided legal philosophers with many good cases and problems
concerning the legal enforcement of morals: the most famous are the Wolfenden Report3 and
the Ladies' Directory case (also herein referred to as the Shaw case), which have been used as
guideposts in the debate, and have been widely publicized.

However, as an illustration of the fact that this question is far from settled, a freshly rendered
judgment of the Supreme Court of Canada in the case of Klippert v. The Queen4 will be used
as the starting point of the present analysis. It shows how, just when the Parliament of the
United Kingdom was acting upon the Wolfenden Committee's recommendations after ten
years by repealing the criminal prohibition against homosexual acts between consenting

3
Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247, (London, 1957).
4
Klippert v. The Queen, [1967] S.C.R. 822.
10
adults in private, the Supreme Court of Canada affirmed a judgment which not only applied
the Criminal Code of Canada concerning homosexual acts, but also interpreted its terms so as
to include homosexuals in the category of "dangerous sexual offenders.' Consequently, it
sentenced the accused to preventive detention that could last for life.

11
 CHAPTER 3: DEVLIN’S IDEA ABOUT THE LAW AND MORALITY.
CONSERVATIVE LAW
As said, not only liberal but also conservative issues of (or considerations on) the law are still
important for the law-makers. We should go back to Lord Patrick Devlin’s theory of law
made in context of passing the Wolfenden report of 1957, in which there was investigated the
current English law on penalisation of homosexuality (homosexual acts) and prostitution. Sir
John Wolfenden and the Committee headed by him proposed to depenalise homosexual acts.
Devlin disagreed. For Devlin these questions were crucial: Is it not better when the law is
rather based on so called the shared morality than e.g. only on the harm principle? This
morality that would the basis of the law requires from people much more that the harm
principle. The problem sounds: how to make people morally better, how to preserve the
traditional morality, the shared morality, the morality majority of one society? That is
absolutely right that Lord Patrick Devlin5 was a conservative English philosopher of law.
There should be said that it is necessary to use some quotations to analyze his philosophy of
law. Some of them may sound strange in a postmodernist, secular West of the 21st century.
Devlin asked: “What is the connection between crime and sin and to what extent, if it all,
should the criminal law of England concern itself with the enforcement of morals and punish
sin or immorality as such?”

By this, Devlin attacked liberalisation of the law, which did not forbid homosexual acts.
According to Devlin, homosexual acts must be forbidden and punished. Institution of
marriage as a “part of the structure of our society” and “the basis of moral code which
condemns fornication and adultery” must be protected by the law, even by violence. Morality
is a foundation of society and its existence. Without social common morality there is no
society. Everybody knows what is moral and immoral – people have moral feelings and feel
its immorality of behaviour in conscience: “Immorality then, for the purpose of the law, is
what every right-minded person is presumed to consider being immoral”. If a given society
takes aim at being alive and exists not only by the generation time, morality must be
respected and the law must be based on the society's morality. If you break morality that is

5
DEVLIN, P. (1971) Morals and The Criminal Law IN WASSERSTROM, R. A. (Ed.) Morality and the Law.
Belmont, Wadsworth.
12
always the public morality only, you must be punished because your immoral act may
influence on members of society and you yourself. Immoral acts such as abortion,
prostitution, fornication or homosexual acts must be forbidden by the law then. Integration of
society and its uniformity seem to be a central point of Devlin’s thought: “There is
disintegration when no common morality is observed and history shows that the loosening of
moral bonds is often the first stage of disintegration, so that society is justified in taking the
same steps to preserve its moral code as it does to preserve its government and other essential
institutions”. There is no private and public morality. ”I do not think that one can talk
sensibly of a public and private morality any more than one can of a public or private
highway”, Devlin says. Why is there no difference between them? Devlin adds that:
“Morality is a sphere in which there is a public interest and a private interest, often in
conflict, and the problem is to reconcile the two”. He believes that “most people would agree
upon the chief of these elastic principles. There must be toleration of the maximum individual
freedom that is consistent with the integrity of society”. In Devlin’s thought, morality is
correlated with religion: “Morals and religion are inextricably joined – the moral standards
generally accepted in Western civilization being those belonging to Christianity”. Religious
norms such as Christian or Muslim rules may be a foundation of the law in Devlin’s theory.
Consequently, Devlin teaches, Christian countries, the countries culturally and religiously
based on Christianity, are allowed to teach Christianity in schools and enforce Christian
concepts of marriage, sin, sodomy, etc. If, on the other hand, we live in Muslim countries, we
should not be surprised that these states are to teach Islam in schools or to forbid eating a
pork. Religion is related to morality. Nobody invented how to teach morality without
reference to religion, Devlin adds. Religion is part of culture. Part of social morality. So,
consequently, to make a given society integrated, we can also enforce some religious dogmas.
Devlin concludes: “No society has yet solved the problem of how teach morality without
religion. So the law must base itself on Christian morals and to the limit of its ability enforce
them without the help of Christian teaching the law will fail”. Responding to Hart’s critique,
in which we can read that Devlin thinks that morality can never be changed without the
destruction of society, Lord Patrick thinks that “If morality is changed, the law can be
changed”. This point is very interesting. So, what follows for my analysis? Firstly, even in

13
conservative philosophy of law we can find some aspects, which make the law liberalization
in socially and morally controversial cases possible. Secondly, the conservative philosophers
of law have serious difficulty in proving that the society's morality is never changed. Thirdly,
in spite of Devlin’s critique the idea that society must be based on fundamental principles and
rules, and there must be necessary connections between making legal prohibitions and real
danger to the society existence (if the law liberalization would be), seems to be still alive and
inspiring for lawyers, philosophers, politicians. These theses, on one hand, are important for
the liberals but on the other hand, these mean that Devlin was not so silly man as he is now
too often presented. He followed the reason and the way of thinking of average member of
one traditional society (the Clapham omnibus that was a moral-legal concept of a rational
man of the Victorian moral era, I would say). Devlin really supported the idea of morally
conservative law as a measure to preserve one society. Even if his theses are a little
exaggerated we cannot avoid the questions what is better for the society's morality in a law-
making process, what the shared morality means, what to do with opinions of the average
citizens, and whether politicians really know better than citizens how to make a law better,
and where is their (politicians’) legitimacy when politicians’ actions are contrary to the
society majority6 . These issues are still open. However, to conclude, for Devlin, integration
of society and common, shared, public morality are the most important values.

6
E.g. if 70 % of one society population supports a capital punishment for 30 recent years and the politicians say:
it is impossible to come back to this measure because it is not humanitarian and seems to be legally doubted in
the light of international obligations, then my question sounds: where is a democracy and a voice of the nation?
Vox populi non est vox Dei in a democratic state? On the other hand, as Mill teaches us, a majority may be
wrong because most of people are stupid at all. It does not mean that it is good to disdain moral feelings of
people who are the majority in one society.
14
 CHAPTER 4: HART’S VIEW OF THE LAW AS A MINIMUM OF MORALITY.
LIBERAL LAW
The idea of the law as a minimum of morality is a defense of both ethical (moral) and
political (constitutional rights) liberalism in the current states nowadays. That is a legal and
constitutional standard in many modern democratic societies and states (Europe, North
America, South America, Australia, and so on). Nowadays, in Western doctrine of law (Hart,
Ronald Dworkin), law is often said to be an ethical minimum or the law is understood as a
minimum of morality7.These ideas were also developed by Hart's pupil Ronald Dworkin ,
who wrote about “political morality” or “constitutional morality” that: “No legislator can
afford to ignore the public outrage. It is a fact he must recon with. It will set the boundaries of
what is politically feasible, and it will determine his strategies of persuasion and enforcement
within these boundaries. But we must not confuse strategy with justice, or facts of political
life with principles of political morality”. It must be a social consensus, which strictly
establishes that some concrete immoral acts may be legally forbidden or ordered. So, as
Dworkin rightly argues,”a conscientious legislator who is told a moral consensus exists must
test the credentials of that consensus”. How to reach that consensus? Dworkin claims that:
“The claim that a moral consensus exists is not itself based on a poll. It is based on an appeal
to the legislator’s sense of how community reacts to some disfavored practice”. The social
consensus problem concerns the average member of one society who thinks rationally, too
(but not the Clapham omnibus, who thinks only morally like the majority). The social
consensus does not exclude e.g. the prohibition or limitation of pornography because of
rational reasons and arguments. Herbert Hart8 underlines that there are many personal
moralities in society and socially controversial cases as abortion or homosexual acts. Hart
stresses that a man is a part of society and cannot live without society. Some social rules are
absolutely obvious. Hart writes: “A collection of individuals is not a society; what make them
into a society is among others things a shared or public morality. This is as necessary to its
existence as an organized government. So society may use the law to preserve its morality

7
MASON, J. K. & MACCALL SMITH, A. & LAURIE, G.T. (2002) Law and Medical Ethics, London,
Butterworths.
8
HART, H. (1971) Immorality and Treason IN WASSERSTROM, R. A. (Ed.) Morality and the Law. Belmont,
Wadsworth.
15
like anything else essential to it”. But according to Hart, not every immoral act must be
legally punished. He does not understand why homosexual acts should be still punished. This
area is about a private life, not the public one. (In fact, Hart will have repeated this while
talking about abortion on demand later). What is the most important Hart asks the question on
public morality: "Who then must feel this way if we are to have what Sir Patrick calls a
public morality?". And furthermore, he adds: "But what precisely are the relevant feelings,
the feelings which may justify use of the criminal law? Here the argument becomes a little
complex. Widespread dislike of a practice is not enough". In the end, Hart makes Devlin
seemingly kneel down: "It is impossible to see what curious logic has led Sir Patrick to this
result. For him a practice is immoral if the thought of it makes the man on the Clapham
omnibus sick". And the problem is that in Devlin's world of prohibition of certain immoral
acts, "no rational criticism should be opposed to the claim that they should be punished by
law". Hart points out that: “No doubt we would agree that a consensus of moral opinion on
certain matters is essential if society is to be worth living in”.

He gives examples of legal prohibitions of murder or theft. Hart thinks that if prohibitions of
homosexual acts are enforced by the law, then morality, which is perfectionist, seems to be
the law foundation. This is wrong, according to him. Also Laurence Tribe8 , the outstanding
professor of constitutional law, thinks, for example, that prohibition of abortion restricts
woman’s freedom and is unjustified: woman has “the right to decide not to terminate
pregnancy”9. Going back to Hart, it is very important to underline that he recognises some
values, natural law in the law, which must be respected by every law in order to be the law
that is socially acceptable. Hart treats morality as a social phenomenon. He uses the concepts
such as “of a given society or the accepted or conventional morality of an actual social
group”. To what does he refer these statements? He explains his point of view as follows:
“These phrases refer to standards of conduct which are widely shared in a particular society,
and are to be contrasted with the moral principles or moral ideas which may govern an
individual’s life, but which he does not share with any considerable number of those with
whom he lives”. Then it is added that the main element in the shared or accepted morality is
9
Compare liberal considerations about the right of woman to terminate a pregnancy: DWORKIN, R. (1993)
Life’s Dominion. An Argument About Abortion And Euthanasia, London, Harper Collins, pp. 3, 110, 241. 10
See HART, H. (1961) The Concept of Law, Oxford, Oxford University Press.
16
“rules of the kind”. What is else, Hart, analyzes that “obvious rules” come from “natural
facts”. We are humans, and we have the same human nature. What does “The minimum
content of Natural Law” mean? It is “universally recognized principles of conduct which
have a basis in elementary truths concerning human beings, their natural environment, and
aims”. So even the legal positivist Hart must retain that the values coming from the human
nature are important and significant for the law and the community. It is worthy to highlight
this fact. However, these natural facts and human values are not to make a given society
morally conservative by the law. The minimum content of morality in law is to make a given
society peaceful, harmonious, and possible to live in Nevertheless, Hart is definitely against
legal moralisation, and he stands in favour of liberal law and human freedom or moral choice
(morally liberal, permissive, progressive law). What is the most important for the liberals
such as Dworkin and Hart they did not agree with the law and morality based on “intolerance,
indignation and disgust” (Hart's phrase - "things viewed with intolerance, indignation, and
disgust"). They considered cases of enforcement of morality by the law in context of
abortion, homosexual acts and pornography, questioning legal prohibitions of these acts. It is
obvious that we can find common moral values and principles or rules in a given society. But
it is not a perfectionist morality, which includes principles and rules such as: be a good man,
be a good Samaritan, help others, love all the people. It is rather a public or social morality
understood as a minimum of morality, which is based on principles such as: do not kill, do
not steal, do not harm others, meet one’s obligations, etc. The minimum of morality includes
only fundamental rules of human behaviour and moral principles, which make the peaceful
cooperation in society possible. In theory of the law as a minimum of morality there is no
place for ethical perfectionism in the law. The rudimentary law purpose is not to make men
better but make the existence society tolerable and peaceful. So for Hart, privacy and private
morality and critical reason are the most important values. Public morality is not ethically
perfectionist.

17
 MAJOR FINDINGS

Again, it is important at the outside to understand Devlin’s approach to law and morality,
before considering Hart’s criticism of his approach. In “The Enforcement of Morals” Devlin
supported the view that law should not tolerate that which the reasonable man finds
disgusting. Society needs a moral identity, because it is the moral values of society that make
it cohere. For Devlin, even private acts of immorality can weaken the fabric of society if they
are sufficiently grave.

The balance that Devlin seeks to achieve is placed in the context of the political morality of
contemporary society, where toleration is itself a prime moral principle. Thus there “Must be
toleration of the maximum individual freedom that is consistent with the integrity of society”.
Devlin’s justification for the legal enforcement of morality is an extension of the harm
principle to a perceived threat to society, rather than harm to other individuals. This seems
quite a reasonable proposition. However this test is one that masquerades as (1) a relevant test
for the principle and (2) an objective test. Devlin’s reasonable man is not asked in
sociological terms what immorality is actually threatening to society. He is asked, instead,
what he feels disgust at.

Further he asserts that whilst the reasonable man test is employed as a way of alienating a
courtroom issue from the subjective opinions of parties to a particular legal issue, it does not
necessarily have the same effect in this situation. Devlin employs the term reasonable man to
give the impression of objectivity. However it is a fiction to suggest that there is a reasonable
man when it comes to difficult moral issues. The reasonable man of legal fiction is one who
employs practical reason and due consideration when acting. However, all the practical
reason and due consideration in the world will not change the preferences an prejudices that
embody disgust. On the issue of homosexuality, many people intellectually feel that people’s
sexual orientation is not a matter for legal intervention, but they nonetheless find homosexual
acts to be repellent. The reasonable man test is thus a spurious validation for prevailing
societal aesthetics, rather than a test of what society feels to be threatening.

18
Devlin’s view should be contrasted with the view of Hart. In Law, Liberty and Morality, Hart
recognises that there does not seem to be any real widely shared morality, and there can be no
freedom if we are compelled to accept only those things that others approve of.

Hart notes that there are certain constants of the human condition, which he terms the
minimum content of natural law, such as the vulnerability of human beings. If we disregard
these sociological facts it would be tantamount to suicide. But beyond these facts, society is
faced with a choice of what rules to adopt in order to protect us from the frailties of the
human condition. Hart seems to assert that since the development of a society is a collective
odyssey, the values that a society has adopted for its preservation and progress constitute a
shared morality of sorts. This does not mean that the norms that a society has accepted and
retained are ones that are logically necessary for the achievement of social preservation.
However, they are instrumental in the maintenance of social cohesion. For this reason he
would not accept Devlin’s analogy of deviation from moral norms with treason against
society. It may be that a change in morality can result in friction, but it need not result in the
collapse of society.

Hart also adopts the harm principle, but denies that consent can be used as a mitigating factor.
Equally, immoral acts in public may be harmful to others and, as such, open to legal censure,
whereas acts in private should not be a matter for the law. His justification is that while the
first is the legitimate prevention of harm, the latter is the enforcement of the societal will over
the individual. Hart finds paternalism justified, but not enforces morality per se.

19
 CONCLUSION
Both Devlin and Hart believe in the value of public morality protected by the law but each of
them interprets this value in another way: conservative or liberal. Privacy and private
morality with critical reason stands against integration of society and common, public
morality. Such problems, misunderstandings, and tensions are still visible in many
contemporary discussions on enforcement of morality by law nowadays (euthanasia, human
fertilisation, same-sex marriages etc.).In spite of Hart’s critique, Devlin's idea - that one
society must be based on fundamental moral principles and rules, and there must be
necessary connections between making legal prohibitions and a real danger to the society
existence - seems to be still alive and inspiring for lawyers, philosophers, and politicians.
However, here comes a new aspect concerning multiculturalism also: although even one may
say that disintegration thesis by Devlin is old-fashioned in a current multicultural society, I
agree to the author of Maccabean Lecture of 1959 that some common values in a community
are necessary to live together. Devlin believes that every society is the community of values,
ideas, beliefs. Devlin believes in a harmonious social life. He is not a madman. Private life
should be protected as far as possible anyway, says Devlin. Is a multicultural society a danger
for the society Devlin described then? This theory, it seems, fits with the old (or maybe post-
)Victorian epoch and the state of the British or English society of the 1950s. It fits with a
homogenous society.

But this does not fit with a heterogeneous society we enjoy nowadays. Anyway, we cannot
run away from Devlin's arguments. because disintegration theory is still important, but
Devlin's considerations are old-fashioned in a contemporary multicultural society. However,
there is necessity of the community of values, ideas, beliefs indeed, I agree to Devlin again.
The question is what this community means in every case, in a given, concrete society. What
values? Let us define them in every case! And here Hart might be also useful when he says:
"English popular morality has no doubt its historical connation with the Christian religion:
'That,' says Sir Patrick, 'is how it got there.' But it does not owe its present status or social
significance to religion any more than to reason. What, then, is it?" This is not the
"emotional" theory of Devlin. But is it really always true? Do we not have bad feelings on,

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say, pedophilia? I have these at least. And again, we are going back to Devlin, and this circle
looks like a never ending story, and it is never finished, since we need both inspirations,
depending on the case and time. This debate is like a "trauma" of moral boomerang in the
Western legal science. It is impossible to wipe it off the map in both theory of law and
practice of law (legislation or law by application). The universal arguments made by both
Devlin and Hart are still being used in our legal and moral debates. Nothing new on earth has
been invented since their debate.

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 BIBLIOGRAPHY
JOURNALS AND ONINE RESOURCES

• BUNIKOWSKI, D. (2010) Enforcement of Morality by the Law IN GIZBERT-

STUDNICKI, T. (Ed.) Law, liberty, morality and rights. Wolters Kluwer Polska –
OFICYNA, Warszawa.

• DEVLIN, P. (1971) Morals and The Criminal Law IN WASSERSTROM, R. A. (Ed.)

Morality and the Law. Belmont, Wadsworth.
• DWORKIN, R. (1993) Life’s Dominion. An Argument About Abortion And
Euthanasia, London, Harper Collins,
• DWORKIN, R. (1971b) Lord Devlin and The Enforcement of Morals IN
WASSERSTROM, R. A. (Ed.) Morality and the Law. Belmont, Wadsworth.
• HART, H. (1971) Immorality and Treason IN WASSERSTROM, R. A. (Ed.)
Morality and the Law. Belmont, Wadsworth.
• HART, H. (1961) The Concept of Law, Oxford, Oxford University Press. MASON, J.
K. & MACCALL SMITH, A. & LAURIE, G.T. (2002) Law and Medical Ethics,
London, Butterworths.
• TRIBE, L.H. (1990) Abortion. The Clash of Absolutes, New York – London, W.W.
Norton. R v. Instan, 1893, 1 QB at 453

WEBSITES

• http://www.jstor.org.

• www.manupatra.com

• https://en.wikipedia.org

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