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 decency and the protection of the lives and property of citizens” (Devlin 373). He is against the view that immorality is exempt from legal prosecution if it does not involve “features such as indecency, corruption, or exploitation” (Devlin 371), since it could effectively eliminate the felonious properties of certain acts, such as euthanasia, suicide, and abortion (Devlin 375). He asserts that while reforms regarding the laws of these acts have been requested, “no one hitherto has gone so far as to suggest that they should all be left outside the criminal law as matters of private morality” (375). In other words, the only...
... middle of paper ...
...s immoral enough that it should be forbidden, despite the fact that this may “deprive the individual of freedom of choice” (383). Therefore, when society is collectively disgusted by the immorality of an act and cannot tolerate it by any means (e.g. homosexuality), that is when it should be criminalized (Devlin 388).
There are instances where immoral acts are positioned outside the jurisdiction of legal prosecution, and that is when its criminalization would be “too difficult to enforce; [and when] it is too generally regarded as a human weakness not suitably punished by imprisonment” (Devlin 388). In these cases, the law can only “act against its worst manifestations” (Devlin 388). Devlin contends, for example, that “the fact that adultery, fornication, and lesbianism are untouched by the criminal law does not prove that homosexuality ought not to be touched” (388).
Need Writing Help?
Get feedback on grammar, clarity, concision and logic instantly.Check your paper »
- ... It aims to create laws that are predictable, that are able to be easily analysed and understandable by the general society. Morality is what the society regard as right and wrong which is highly subjective, some legal philosophers believe that there is a certain moral standard which human laws must contain. Chapter 2 in The Constitution of the Republic of South Africa, 1996 which is the Bill of Rights contains moral values which the country is based. Section 1 of the Constitution provides that South Africa is an independent sovereign, democratic state which was based on following values: ‘Human dignity, achievement of equality and advancement of human rights and freedom, Non racial... [tags: society, obey, positivism]
1265 words (3.6 pages)
- Question: Is there a role for morality in the law. If so, what is this role. In society a code of morality could be seen as a set of beliefs, values and principles. The root of morality is bad and good behaviour. Moral views differ between individuals also within society. A dictionary definition of morality is ‘a set of personal or social standards for good or bad behaviour and character.’ Furthermore, law could be seen as a set of rules assigned by the government to keep society in order by following these rules.... [tags: Morality, Law, Human rights, Moral]
1660 words (4.7 pages)
- Introduction This essay will be discussing the distinction between the duty to obey the law and morals taking into consideration the trial of socrates within which this essay will be using as a vehicle to analyse the jurisprudential question as to why in a very modern constitutional democracy the citizen has a duty to obey the law. Socrates-Law vs Morality The trial of Socrates suggests that there are three possible bases for an ethical obligation to obey the law. First and foremost a citizen might have agreed to the law, that is, we might find that an express or implied agreement to conform exists.... [tags: obey, society, moral]
1268 words (3.6 pages)
- H. L. Hart was an influential British philosopher, who revolutionized the philosophy of law and methodology in jurisprudence. Influenced by Jeremy Bentham (utilitarian approach), another prominent British thinker, and John Austin, he established a new ground for the school of legal positivism, especially the analysis of the legal concepts and the idea of the separation of law and morals. One of the most important works of him is "The Concept of Law", published in 1961, aims to analyze a relationship between law, morality, and coercion.... [tags: law, morals, separation, contract]
1422 words (4.1 pages)
- Morality has a strong connection with religion. The connection is so strong that most panels on ethics contain Ministers of God. This scenario therefore creates a natural question, “Does morality depend solely on religion?” The first point to understand in this scenario is the fact that God and religion are not the same. For instance, Christianity and Christ are not the same. The existence of God is independent of us just as the planets of Jupiter and Saturn are independent of human existence. The independence of God from us makes him prone to human weaknesses.... [tags: Morality, Religion, Bill Gates]
1181 words (3.4 pages)
- How are morality and happiness related. Throughout history, philosophers have tried to determine the precise link between morality and happiness. Most, if not all, believe that the way you live your life defines your end happiness. To begin, we must have a common definition of happiness. Depending on the various philosophies happiness can be slightly different things. Socrates, who was one of the was the first to make a connection between morals and happiness, defined it as that “happiness comes from leading a moral life in servitude of the greek gods” (Boss, 389).... [tags: Ethics, Morality, Utilitarianism, Aristotle]
1520 words (4.3 pages)
- Does one’s happiness transcend to others and create happiness for society. The concept of Utilitarianism is that of which the average individual must endeavor to obtain maximum happiness by doing whatever means necessary to better the world as a whole. This goal is not only for people of the present but also the future. This goal can come with a lot of skepticism especially from that of common sense morality. These things conflict with one another because although Utilitarianism tries to bring the best out of everybody with happiness; it lacks the self interest for others when making decisions.... [tags: Morality, Religion, Ethics, Pregnancy]
1542 words (4.4 pages)
- Religiosity and morality stood out because it is a controversial topic that is compelling to learn about. Everyday life can be affected by these two factors in a positive or negative light. People do not usually think about the morals they obtain and where their morals came from. Researching this topic and understanding the relationship between these two issues will provide a better, clearer view of how people respond in different situations. The relationship between religiosity and morality are contingent on one another.... [tags: Negative Behavior, Empathy]
988 words (2.8 pages)
- Problem: The ideals of Western Society are based on Christian teaching combined with Greek and Roman Philosophy. This creates questions about what types of relationships between people are moral. Such as, should our society recognize gay marriage, or civil union, or neither. An ethical answer that stays true to the foundational basis of Western society can only be formulated by the subjectiveness of “right” depending entirely on what history decrees and the examination of these crucial concepts.... [tags: Marriage, Civil Union, Natural Law]
1277 words (3.6 pages)
- In 1850, congress made the Fugitive Slave Law. The law mandated that all slaves that escaped from the South had to be returned to their rightful owner. After the Dred Scott v. Sandford Supreme Court case the blacks were not considered citizens of the United States. In the court case of United States v. Morris, a slave named Shadrach was being held for a hearing, because he escaped from Norfolk, Virginia to Boston. The Fugitive Slave Law mandated that Shadrach needed to be sent back to Norfolk to his rightful owner.... [tags: Law, Jurisprudence, Legal positivism, Justice]
2161 words (6.2 pages)