One might pose the question: why should a legal system be morally neutral? Surely the enforcement of a particular society’s moral compass is the raison d’être of its framework of laws and judicial superstructure? Perhaps so in a broadly criminal context but perhaps not in every sense? Human behaviour embraces a certain moral perspective that is essentially private, carrying few if any exogenous consequences for the world at large.
The celebrated and much analysed Hart-Devlin debate on the legal enforcement of morality saw its origins in the publication of the Report of the Committee on Homosexual Offences and Prostitution (hereafter referred to as "the Wolfenden Report") . The Wolfenden Report was underpinned by a fundamental philosophical argument which was considered decisive and which was set out in paragraph 61:
"We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have been met by the counter-arguments we have already advanced. There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral or immoral conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law."
Lord Devlin disagreed with this libertarian point of view. His Lordship argued that the policing of vice is as an important a function of the law as the policing of subversive activities. Devlin contended that it is as difficult to delineate the realm of private morality as it is to ascertain one relating to private subversive activity. He submitted that an acknowledged moral code is as necessary to society’s existence as a recognised government and that its maintenance is equally important. Hence, he argued that one who is no apparent menace to others may, by his immoral conduct, jeopardise part of the moral establishment on which society is based. Given that every society is entitled to preserve its own existence, he submitted that it follows that it has the right to employ the institution of the criminal law and its sanctions to enforce that objective.
Lord Devlin postulated the test that every moral judgment should be determined on the fundamental basis that no right-minded man could act in any other way without admitting that he was doing wrong. Such a question should be left to the judgment of a jury of peers, where the decision could be left to a matter of feeling and conscience. His Lordship thereafter attempted to set in place a threshold for the intervention of the criminal law. He argued that the law was entitled to intervene to address behaviour that aroused feelings of indignation and disgust in society.
Lord Devlin’s analysis provoked a response from Professor Hart in the form of an essay. Hart’s paper went to what seemed to be the essence of Lord Devlin’s thesis, and specifically addressed the issue of moral populism and democracy. He observed:
"It seems fatally easy to believe that loyalty to democratic principles entails acceptance of what may be termed moral populism: The view that the majority have a moral right to dictate how all should live. This is a misunderstanding of democracy which still menaces individual liberty.”
This analysis chimes with that advocated by Mill more than a century earlier. In On Liberty Mill mused on society’s purported function in regulating the modus operandi of the individual. He argued that good government should defer to individual interests whenever and wherever possible, but it is submitted this may be a naïve policy to adopt. Devlin’s argument although conservative is perhaps more realistic in the round. Many ordinary citizens would subscribe to the contention that it is the function of a democratic government to enforce the side of the collective interest in most situations. One could say that this approach buttresses the rationale and indeed the legitimacy of modern democracies.
That said, Professor Hart continued his analysis by stating that:
“The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted. No one can be a democrat who does not accept the first of these, but no democrat need accept the second. Mill and many others have combined a belief in a democracy as the best - or least harmful - form of rule with a passionate conviction that there are many things which not even a democratic government may do. This combination of attitudes makes good sense, because, though a democrat is committed to the belief that democracy is better than other forms of government, he is not committed to the belief that it is perfect or infallible or never to be resisted…Whatever other arguments there may be for the enforcement of morality, no one should think even when popular morality is supported by an “overwhelming majority” or marked by widespread “intolerance, indignation, and disgust” that loyalty to democratic principles requires him to admit that its imposition on a minority is justified"
Dworkin commented on the Hart-Devlin debate by considering a scenario in which a citizen decides to vote against a man running for a public office because he is aware the candidate is homosexual and because he believes that homosexuality is profoundly immoral. He postulates several fundamental rules of moral reasoning and finds that if a decision to vote against a person due to his homosexuality is to have a rational basis, certain types of reasoning are excluded. Dworkin resolves that even a reason not disqualified by virtue of prejudice, emotional reaction, or social pressure may be insufficient. The reason produced must be one that is consistently held. Dworkin concludes thus:
"Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenge the community’s own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It remains possible that the ordinary man could produce no reason for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which pre-supposes a general moral position he could not sincerely or consistently claim to hold. If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief that prejudices, personal aversions and rationalisations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality."
It is submitted that Professor Dworkin’s arguably sympathetic interpretation of Lord Devlin’s thesis does not necessarily indicate that he endorses Devlin’s conclusions. It is contended that Dworkin seeks to rebut Lord Devlin's argument on its own terms. Dworkin asserts that Devlin recognises that a legislator's choice to protect social institutions from private conduct is a difficult one, because the legislator must determine whether the institutions which appear threatened are sufficiently valuable to safeguard, given that the cost is human freedom.
‘We see how morality as morality, as the principle of the world, which obeys its own laws, disappears, and in place of the essential character we have external appearance, a decorousness imposed by the police, a conventional propriety’
It is important to note that the first and bounden principle of Marxist legal theory is a fundamental opposition to law. In Marxist terms the law is a barbaric expression of the power of the state. Marxist penal theory has a differ from conventional or traditional thought on the subject. Rather than punish or exploit the criminal the Marxist object is to assist the criminal to comprehend their crime and its antisocial character. Marxist penology thus concentrates on the goals of rehabilitation and reform. Marxism contends that morality rests on autonomy, not on some imposed legal system.
Marxists might contend that legal ideology is a tool cynically wielded by the powerful to ensure the moral submission of those without power. Marx argues that it offends the so-called conception of right if a legal system is the ‘blunt, unmitigated, unadulterated expression of the domination of a class.’
Although his work is punctuated with moralistic statements it is submitted that in his heart Marx is an amoral philosopher who denies the existence of and indeed the need for any universal moral standards. He asserts that an attempt to intervene in private morality via an overarching legal system is an evil that will inevitably suppress social revolution in its broadest sense.
To restate the initial point made in this paper, one might pose the question as to why should a legal system be morally neutral? A legal system reflects the priorities and issues of the society it serves, and it is argued, rightly so. This entails a huge range of subjective adjustments based on the received wisdom, fears and expectations of the majority view (in a democracy) that serve to define the social conscience of the state.
Marxists and champions of the libertarian school seek to deride this point of view arguing that individual freedoms should not be sacrificed on the altar of a community sanctioned order. The modern polemic relating to ‘political correctness’ and nagging fears concerning the activities of the so-called ‘nanny state’ and ‘thought police’ is relevant in this context and adds some weight to the argument that law and private morality should be distinguished. Ultimately the question is a quintessentially personal one and a democratic society can only arrive at an answer by ascertaining a general consensus of individual opinions on the issue.
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