Moral Goals and Legal Coercion: Philosophical and Legal Arguments of Patrick Devlin

The paper analyzes the arguments of the British jurist P. Devlin on the possibility of ensuring the achievement of moral goals by legal means. The views of P. Devlin and his debate with H. L. A. Hart gave rise to deep discussions on the relationship between moral and legal prescriptions in legislation and the search for moral grounds for legal norms and practice of its application. The paper also reconstructs P. Devlin’s arguments on the specifics of the application of the principle of harm compensation in assessing actions that contradict public morality

Koncepcja moralności publicznej Lorda Patricka Devlina a orzecznictwo Europejskiego Trybunału Praw Człowieka

The aim of this article is to present the case law of the European Court of Human Rights (ECtHR), in cases concerning public morality, in the context of one of the most important debates in 20th century legal philosophy: the dispute between Patrick Devlin and Herbert L.A. Hart. In order to achieve this aim, I first describe the key theses defended by these scholars and explain the historical circumstances in which the debate arose. Then I analyse the most salient judgements passed by the ECtHR, which defined rules of the acceptable limitation of individual rights guaranteed by the European Human Rights Convention due to the moral norms existing in a society. I conclude that the reasoning adopted by the ECtHR in these cases resembles Devlin’s propositions to some extent. Furthermore, I claim that a reference to inherent and inalienable human dignity might be considered a sound solution in some doubtful cases in which moral problems or rights restrictions appear. Finally, I show that legal moralism, as a vein in the philosophy of law, has its adherents in contemporary science, too. However, the views presented by new legal moralists fundamentally differ from those postulated by Patrick Devlin in his time.

El Derecho como instrumento de educación moral

La tradicion central de la filosofia moral y politica occidental fue perfeccionista, es decir, entendio que el Derecho y el Estado podian y debian contribuir al perfeccionamiento moral de las personas. Este trabajo examina la argumentacion perfeccionista de Aristoteles, San Agustin y Santo Tomas, asi como el ≪principio del dano≫ de John Stuart Mill, referencia clasica del antiperfeccionismo. Reconstruye tambien la polemica entre Patrick Devlin y H.L.A. Hart sobre la cuestion de las ≪leyes sobre moralidad≫. Finalmente, propone la obra de Rawls como paradigma de antiperfeccionismo contemporaneo, mientras el ≪liberalismo perfeccionista≫ de Joseph Raz y las consideraciones de Robert P. George sobre la ≪ecologia moral≫ son analizadas como exponentes de un perfeccionismo a la altura de los tiempos.

Social Integrity and Private ‘Immorality’ The Hart-Devlin Debate Reconsidered

In a debate between tolerance and intolerance one is disinclined to side with intolerance. Nevertheless that, in a sense, is what I want to do in this paper. The particular debate I have in mind is the old one between H.L.A. Hart and Patrick Devlin about the legal enforcement of moral values. It should be noted, though, that the issue has by no means been settled in the minds of many people. The proposed repeal of the British law prohibiting the promotion of homosexuality (a law known as Section 28) “could destroy Scottish society,” according to Mazhar Malik of Glasgow’s Ethnic Community Resource Centre, echoing Devlin’s concern from the 1960s. In what follows I will first sketch and defend, partially, what I take to be Devlin’s communitarian argument and then attempt to explain what is wrong with it and how this should affect our estimation of the proper relation between law and morals. I will argue that at least some private ‘immorality’ can be defended without recourse to the liberal belief in a morally private sphere. In part I I look at the kind of communitarianism that can be found in Devlin’s work, in part II I support this reading of Devlin and expand on it by looking at some important passages from his work, and in part III I consider the reasons why his argument does not support legislation against gay sex, and, in fact, could be used to defend gay rights.

Law, Morality and Religion in a Christian Society

The publication in 1957 of the Wolfenden Report occasioned a celebrated controversy in which profound theoretical issues concerning the relation between law and morality, and the legal enforcement of morality were discussed. The principal disputants were Lord Justice Devlin (Sir Patrick Devlin as he then was) and Professor H. L. A. Hart. It is by now well known that the main recommendation of the Wolfenden Report was the reform of the criminal law so that homosexual behaviour in private between consenting male adults should no longer be a criminal offence. As homosexual behaviour in Christendom was at the outset punishable in the ecclesiastical courts, and subsequently, with the demise of the ecclesiastical courts, in the secular courts, the Wolfenden recommendation on homosexuality marked a major departure from the prevailing state of affairs in which the precepts of Christian morality, especially relating to sexual morals, were at first enforced by the ecclesiastical courts, and then by the secular courts.

Autonomy of Corrective Law: A Projection of the Doctrine of Constructive Negligence

Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent.(Montesquieu,Esprit des Lois,liv. xxvi, chap. 24)Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.(Sir Patrick Devlin, “Statutory Offences” (1958) 4Soc. Pub. Teachers of Law 215)The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.