The Hart vs Devlin Debate free essay sample

This essay will seek to examine the contention that should the Government introduce a minimum price for alcohol and other measures, such as restricting multi-buy offers in shops and off-licences and promotions in bars, in an effort to reduce the nation’s consumption of alcohol, in particular binge drinking? Of particular interest in this area is the fascinating debate between H. L. A. Hart and Sir Patrick Devlin sparked by the publication of the Wolfenden Report on Homosexual Offences and Prostitution. Their analysis of the desirability of regulating morality is a vital addition to any consideration of this question and will form a large part of my enquiry. The renowned and much analysed  Hart v 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 committee concluded that unless society made desirable attempts to lawfully equate the sphere of crimes in private morality which is separate from law will be exposed. However this did not encourage pubic immorality rather homosexual behaviour between adults who consented should no longer be a criminal offence under Sexual Offences Act 1957. Nonetheless two years later Lord Devlin  criticised this report in his book the ‘The Enforcement of Morals’. Professor Hart  supported the general proposal of this report and attacked Devlin’s argument. Devlin wrote and published The Enforcement of Morals, in which he argues that morality is part of the fabric of society and that immoral conduct therefore presents a clear threat, the neutralisation of which takes precedence over individual freedom. â€Å"Devlin argued that one of the essential elements of a society is a shared morality. †The maximum individual freedom that is consistent with the integrity of society should be determined based on the intolerance, indignation and disgust of ordinary people. This viewpoint has been co-opted by religious and other strongly conservative groups campaigning against binge drinking and cheap sale of alcohol. He argued that the policing of vice e. g. alcoholism is as 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. H. L. A. Hart, a confirmed and dedicated positivist and liberal, disagreed with Devlin in Law, Liberty and Morality, published in 1963. He argues against fixing the morality of a society by cementing it in place with law, since morality is a social standard which changes as the society changes and develops, consistent not only with the preservation of society but with its advance. â€Å"The problem is that beliefs about moral matters change. † This is not something which must be maintained in the interests of societal integrity but which must be allowed to modulate as society does. 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. † Hart argues that the theories put forward by Devlin are unsustainable. Devlin is mistaken because he gave no evidence that enforcing morality is required to preserve a society. Hart does not argue that members of civil society should not follow moral standards but he believes this can be best achieved by discussion, advice and debates rather than law. Using the law as weapon to secure moral standards through fear of punishment symbolises the condemnation and social insult of departing from moral values. â€Å"Hart’s theory of law does not give a central role to sanctions. †The price of seeking to impose moral value by legal sanction in terms of punishment in turn results to loss of freedom. Furthermore, in his (classically liberal) view there is a distinction to be drawn, the offence caused by immoral acts taking place in public and being witnessed by others, and that caused by the knowledge that immoral conduct takes place in private. This is identifiable as a direct descendant of Mills harm principle; that harm to others can and should be regulated, but that the law should not intervene to regulate the private acts of individuals which harm only themselves. However, the key problem with the harm principle has always been that it requires a line to be drawn between what causes harm and should be regulated, and what merely attracts disapproval and rightly belongs to the freedom permitted to the individual in liberal law systems. Applied to the cheap sale of alcohol this problem becomes crucial while proven harm caused by binge drinking would be a strong case under the harm principle for strict regulation, there is an inescapable difficulty in evaluating the harm it causes in a meaningful manner. In relation to the question presented of whether or not the government should introduce a minimum price for alcohol and other measures, such as restricting multi-buy offers in shops and off-licences and promotions in bars, in an effort to reduce the nation’s consumption of alcohol, in particular binge drinking, Devlin, judging by his observations would very much answer yes as it would cut the number of days lost in absenteeism; it would also cut hospital admissions and alcohol-related crimes as well as saving money thereby benefiting and upholding the morals of society as binge drinkers can be seen as a threat to social order. Professor Martin Plant an expert witness told the health select committee that â€Å"supermarkets are exhibiting the morality of a crack dealer† he also stated bluntly â€Å"Cheap alcohol kills people. † Hart who is totally on the other side of the moral spectrum to Devlin would answer no to the question based on his argument that the law should not be used as a weapon, trying to cut the nation’s alcohol consumption through the means of increasing its price etc. would serve to go against the very nature of a democratic society. In conclusion, while I cannot agree with Devlins conservative and religiously inspired stance, I can see that his wider view on the social cost of such activity is one which bears reconsideration. We need to set aside established principles for a moment and try to think of new ways to look at the notion of harm, and perhaps more crucially, the notion of victim. 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 I. e. the cheap sale of alcohol and binge drinking in this case.