1. Criminal law is not (just) for the protection of individuals but also for the protection of society Moderate / Disintegration Thesis: 1
The state has power to legislate morality in order to protect itself against behaviors that may disintegrate society and its institutions
Society “means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist” (Devlin, 10).
Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. Society’s morality is a crucial, if not the crucial, element that holds it together
"Societies disintegrate from within more frequently than they are broken up by external pressures. 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... the suppression of vice is as much the law's business as the suppression of subversive activities." Devlin, "The Enforcement of Morals" 36 (1959)
Extreme/ Conservative Thesis:
A society is entitled to enforce its morality in order to preserve its distinctive communal values and way of life
Hart critiques Lord Devlin’s first argument by challenging his conception of society “*He has+ a confused definition of what a society is” (Hart (1962) chapter 82). Attack against the Moderate/ Disintegration Thesis
Hart argues that decriminalizing behavior, which has previously been viewed as immoral behavior, is not necessarily a threat to the society’s long-term cohesion or existence. [Devlin] appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history, so that a change in its morality is tantamount to the destruction of a society. (Hart 51-52. Italics in original.) The moderate thesis implies factual claims of the disintegration of society for which Devlin did not provide, and (in Hart's view) could not have provided, substantial empirical support. DEVLIN:
I do not assert that any deviation from a society‟s shared morality threatens its existence any more than I assert that any subversive activity threatens its existence. I assert that they are both activities which are capable in their nature of threatening the existence of society so that neither can be put beyond the law .
I would venture to assert, for example, that you cannot have a game without rules and that if there were no rules there would be no game. If I am asked whether that means that the game is „identical‟ with the rules, I would be willing for the question to be answered either way in the belief that the answer would lead to nowhere. If I am 1
(Hart’s term H. L. A. Hart, "Social Solidarity and the Enforcement of Morality," The University of Chicago Law Review 35 (1976), pp 1-13].)
asked whether a change in the rules means that one game has disappeared and another has taken its place, I would reply probably not, but that it would depend on the extent of the change. (Devlin, Morals 37).
Lord Devlin does not then think that this power should be exercised against every single kind and act of immorality. Society should exercise this power only when the moral sensibility of the majority regarding a given immoral activity rises to the level of profound “intolerance, indignation, and disgust” (Devlin, Morals 17)
DWORKIN: If society should not legislate against all immorality, because not all immoral activities and acts endanger its existence, then what standards for evidence and action will be used to justify society’s right to enforce its morality in any given case? The threshold criterion that Lord...
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