The issue of whether the law ought to enforce morality is a physiological debate that has been going on for some time, with key commentators being Hart and Lord Devlin, whose differing views on the legitimate role of the use of criminal law to punish immoral conduct has sparked off much debate in the following years and remains the central focus of our discussion today. I believe that the question, in asking for ‘good arguments’ for the legal enforcement of morals, is asking the question of whether there is an argument that explains if the legal enforcement of morals can be legitimate in principle, and not the substantive question of whether the law should actually regulate immoral conduct. While the proposition presented in the question may appear to have a simple ‘yes or no’ answer, it in fact contains quite a few variables that require consideration before an answer can be reached. Thus, the first part of my essay will briefly set out a few possibilities of what ‘public morality’ could refer to and explain why the definition I have chosen (Hart’s description of positive morality ) is of greatest relevance in answering the question.
After these considerations, there are two main ways of progressing with answering the question. The first is to review all the various arguments put forth for the legal enforcement of public morality and decide if any are ‘good enough’, which would be extremely difficult even without a space constraint. The second way is to attempt constructing an argument that is satisfactory in justifying legal enforcement, and this is the method I have chosen. First, I will put forth Lord Devlin’s disintegration thesis , which remains one of the most commonly known arguments justifying the legal ...
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... question in a way that makes it difficult to attempt the answer by way of constructing a good argument because it introduces too many new variables to the question. Positive morality, on the other hand, is simply a definition with one qualification of fact, and unlike George’s ‘true’ morals, does not require a belief in the truth or validity of the morals in question. For example, saying that belief in the dignity of human life is a public moral because the majority of people in this society believe so does not require us to question whether this is a true moral or not, it exists simply as described. Therefore, I believe that this is the best description of use to the discussion. The question is then: is there a good reason for legal enforcement of society’s positive morality? I will begin to attempt to answer the question by first laying out Lord Devlin’s argument.
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