Should the law enforce morality?
The question above is one which easily divides potential respondents, for it appears prima facie to the layperson that there is indeed an obvious link between the two concepts, or indeed that they should not in practice be seen as two distinct things. There are those who would disagree of course, and suggest that the law should not invade private life. I aim to discuss this question, by considering R v Brown as a test case, and the thoughts of (Hart and) Devlin, and supplement this with my thoughts on the views of some authors such as Ashworth and Dworkin. Thereafter, I will be able to reasonably conclude that the question is in fact unanswerable, not because the arguments on both sides are balanced, but because the question is meaningless.
I will begin by looking at the R v Brown case, where five males were convicted in court for having performed violent sexual acts in private with the full consent of the so-called victims. What is going on here is that the participants have engaged in acts which are acceptable on their own moral codes (since consent was given), but the state is attempting to enforce some other code.
Lord Templeman suggested that the issue of consent was irrelevant to the question of the illegality of an action, since the latter constitutes a breach of the peace. This traces back to high-minded English snobbery about a king needing able-bodied soldiers. The idea seems to be that a society is more important than its individuals. But this is, of course, erroneous, for it seems obvious, upon reflection, that there can be nothing more sacred than individual liberty.
Ashworth suggests (2009, p.23ff) that we are morally responsible because of said individual autonomy. But this seems contrary to reality; indeed, it is precisely for the benefit of autonomy that we ought not have responsibilities. States are robber bands enlarged, for there is no justice in controlling others; punishment is a cruel and demeaning act which would itself be illegal, were it not for the special legal status the state gives its own actions.
I deem punishment to be immoral, thus, the law does not enforce my morality. Since the consent, and hence, the subjective moralities, of those concerned did not change the law’s position on their acts, the law and morality cannot be linked.
To show this further: Lord Jauncey points out that consent was fully and freely given, and that no one complained to the police at any time, adding that the act occurred in private, and so breached no peace. Despite this, he decides that the act should be punished because it just is illegal. He uses precedents rather than his own reasoning, and adds the charge that was famously imposed on Socrates: the corruption of youth, since members of the group were recruited aged 15. Of course, in order to think youth were corrupted, you must have already thought these acts were morally wrong and so this charge is invalid.
Next, Lord Lowry decides the behavior in question should not be allowed, since it does not further family life. Perhaps here instead we should use something along the lines of what Kell suggests, i.e., disutility: do not make it legal only if it is beneficial, instead, only make it illegal if it is harmful (1994, p. 128).
Lord Mustill (and Lord Slynn agrees with him) begins by revealing that one of the charges was ‘keeping a disorderly house.’ That this is illegal is strange. For it would follow, then, that living in a sort of commune with multiple lovers would also be illegal, and if this is the case, then the law is invading personal moral life, and so is not connected to it. He explains what is really happening in the case. These men cannot be punished for a sexual offence, so the acts are being construed as an assault so they can be punished.
After almost four complete speeches, the idea is put forth that this case should be considered by itself, apart from precedents. He suggests that this private act falls within private morality, and that the law has no business interfering in the same. As for the corruption of youth: for any act that is not in itself illegal, it cannot be illegal to encourage others to perform it.
Having looked through the case and made some observations, I am able to offer a pre-conclusion: the state should not interfere in the lives of its citizens as a result of some action, the doing of which is deemed to be unpleasant or immoral on someone’s moral code, unless that action is actually illegal according to the current laws. D. Archard says it is being true that X should be illegal should not to necessarily follow from X’s being immoral (1998, p. 99). This is indicative of a divide between the two aspects.
Next, it seems appropriate to look towards the Hart/Devlin debate.
Patrick Devlin thinks morality simply should not be separated from legality (1977, p.4). But this does not make any sense. Morality is the internal sense of right and wrong peculiar to the individual; a result of teaching, upbringing, indoctrination, evolution even, and the human condition itself. It cannot then, link with religion, a legal system, or any such code, or it would not be morality at all, for when at once you are following a rule laid down before you, or are performing action X because you have been told either to X or not to not-X, then you are not doing the good action required for your act to be a moral one. Morality must be purely internal to the self, and in some sense arbitrary. It is an entirely subjective thing. Laws are in fact nothing more than the state attempting to stop individuals from practicing their own morality.
Devlin (1997, p. 6) suggests laws exist for the protection of the individual. But what protection is this that does not allow me to consent to certain acts I freely would choose to perform? This is control, not protection. He discusses about enforcing principles a society wishes to enforce, but this is merely a tyranny of the majority in some sense; worse, it is a tyranny of a no-longer-existing majority, since, in most cases, laws are remnants of a harsh conservative past.
Devlin tries to consider private morality (1997, p.8), but fails almost at the beginning. He appears to think private morality is thought to be the right to act immorally in private. But this cannot make sense unless he is imposing an objective morality onto our actions, and so where flees our private morality, brought to light only to be at once set upon and extinguished by someone else’s moral code?
He tries to claim that a fixed, established, and shared morality is as necessary to a society as good governance (1997, p. 13). This seems odd, since the government is the very thing which prevents freedom of moral expression in a society. I can safely say that I do not want good government or fixed morality.
Devlin would next have us believe that there can be no private immoral acts, just as there can be no private treason (1997, p. 13-14). Sadly, he does not realize that it is not allowed that he define morality as shared societal values, and then suggest we cannot have private immoral acts. Of course we cannot, not if morality is defined in terms of society. Whether we can act immorally or not will come up later. Similarly, as Hart comments (1997, 84-6), he thinks removing shared morality will fell his society, but this is only because he defines a society as a group of people who share a particular moral code. Moreover, the parallel between treason and immorality seems altogether unfounded (Hart, 1997, p. 86).
Devlin suggests moral judgement is what any reasonable group of people would be unanimous about. But this seems to involve morality linking with rationality. But this is not so, since morality excludes rationality. It is rational to protect the self, to further the interests of the same. It is considered a good deed in the moral codes of many to perform acts which benefit others more than oneself. So there is no necessary connection between morality and rationality.
Furthermore, were it to be the case that everyone’s moral codes were in agreement that furthering one’s own aims was the moral and right thing to do, this would be entirely contingent and not indicative of a link between morality and rationality.
Devlin (1997, p. 17) admits that our merely disliking X is insufficient for X’s being illegal; he thinks a further thing is required: viz., we must be disgusted by X. But what line of inquiry is this, where we try to link a fixed, uniform, rigid, objective thing, es decir, the law, with morality on the grounds that the latter is something which is wont to be affected by emotions and whims, and so is something which bears no likeness to the law?
All Devlin is doing in this work is laying out his own personal moral code and then saying that everyone ought to follow it, or, at least, he is saying there exists some pre-made moral code we must all follow. He mistakes morality for something objective and factual (1997, p.23), which it is only insofar as what fact relates subjectively to us as individuals. We each have a fixed deontological moral code; there is objectivity within the framework of subjectivity.
As a general response to Devlin’s ideas, H.L.A. Hart says we used to burn witches because we felt that witchcraft was intolerable (1997, p. 87). Public opinion went in for this sort of thing very strongly; we really were disgusted by the immoral acts of witchcraft. Devlin’s theory would require us to punish witches with the truncheon that is the law. This is intended as a reductio ad absurdum, and shows the problems which arise if we try to connect legality with emotion or morality.
R. Dworkin does something rather novel and considers that, rather than being immoral, something could be from a different moral code (1977, p. 995). This, of course, makes perfect sense, and is what I have said already. I would even go so far as to suggest that it is impossible to act immorally. This is another reason morality and legality must remain separate, because, whereas illegal acts exist, immoral ones do not. Socrates said that no one voluntarily does bad things, and this is true. When people think they have done wrong, they really think that they have done wrong according to someone else’s code, or according to law, but it is in fact impossible for someone to act immorally on their own code. When one supposes one has broken one’s own moral code, what has actually occurred is not the breaking of said code, but a misunderstanding of what the code actually was. It may be said that the wrong-doing is that a law has been violated, and not the actual act performed per se. But this is to give some undue authority to the law, a demon the desire of which it is to enslave us.
We have seen from R v Brown that it is unfair to suggest the law enforce morality, because this would just be some arbitrary morality in which we do not all share, given the entirely subjective nature of morality. We noted a striking divide between the concepts of “morality” and “legality.” We then also realized that morality per se actually excludes any links with a rule-based system or with authority. Finally, we appreciated that it is not possible in reality to act immorally. So, the question “Should the law enforce morality?” is actually meaningless, since the concepts are mutually exclusive, and because, given that we cannot act immorally, there would be nothing to enforce.
Bibliography of works consulted
- Archard, D., 1998, Sexual Consent, Oxford: Westview Press.
- Ashworth, A. J., 2009, Principles of Criminal Law (6th edition), Oxford: Oxford University Press.
- Devlin, P., 1977, ‘Morals and the Criminal Law’, in: Dworkin, R., (ed.),
- The Philosophy of Law, Oxford: Oxford University Press, p. 66-82
- Dworkin, R., 1977, Taking Rights Seriously, London: Duckworth.
- Feinberg, J., 1984, Harm to Others, Vol 1 of his The Moral Limits of Criminal Law, Oxford: Oxford University Press.
- Giles, M., 1994, ‘R v Brown: Consensual Harm and the Public Interest’, in: Modern Law Review 75, p. 101-111.
- Hart, H.L.A., 1977, ‘Immorality and Treason’, in: Dworkin, R., (ed.), The Philosophy of Law, Oxford: Oxford University Press, p. 83-88.
- Kell, D., 1994, ‘Social Disutility and the Law of Consent’, in: Oxford Journal of Legal Studies 14, p. 121-135.
- R v Brown , All England Law Reports 75.
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