In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada [Attorney-General] vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position - as articulated by Patrick Devlin - supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism - Mill and von Hayek - would agree that the decisions were just. A conclusion will then follow.
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... legal interpretation. They question for the judges wasn't "Should we reinterpret this law" but . Both judges concluded that if the people, as a collective, had condoned homosexuality, then Parliament should have enacted (or in this case, amended) the proper legislation. But the fact that Parliament did not shows that "public morality" is still homophobic. Both judges accepted their role as facilitators of the public will. They would have been justified in interpreting the law in a way that the people, represented by the legislature, did not approve of. The verdicts in Mossap and Egan served the will of the people. If that's not democracy, I don't know what is.
David Dyzenhaus and Arthur Ripstein, eds. Law and Morality: Readings in Legal Philosophy. (University of Toronto Press, 1996).
1 See Hobbes, Thomas. For more details.
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