Patrick Devlin's Legal Moralism

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1. Introduction The relationship between morality and law has always been a subject of contention in jurisprudence. Consequently, many legal theories have attempted to define the appropriate limit and scope of morality’s influence on the law. Legal moralism, as proposed by Patrick Devlin, is the belief that society has “the right to pass judgement at all on matters of morals” (375), as well as “the right to use the weapon of the law to enforce it” (376). In this essay, I argue that Devlin’s legal moralism is unacceptable on the basis of committing cultural relativism, and that its application is problematic due to its inconsistent, arbitrary and biased nature. This essay will: 1) explain Devlin’s reasoning for legal moralism; 2) object to Devlin’s legal moralism with consideration to Devlin’s possible response. 2. Moral Principles as the Basis for Criminal Law Devlin believes that criminal law should be, and is, “based upon moral principle” (375). His legal moralism is, in part, a response to the idea that instead of actively determining between good and evil, criminal law is about “the preservation of order and…show more content…
He states that “without shared ideas on politics, morals, and ethics no society can exist” (378). To Devlin, an established morality is vital to the survival of society, and the lack of its presence can lead to a disintegration of society from within (380). Due to the importance of morality in the continuation of society, Devlin argues that society should possess the right to make moral judgements, as well as the right to “use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence” (378), since it is “entitled by means of its laws to protect itself from dangers, whether from within or without”
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