Relationship Between Morality And Law Essay

Relationship Between Morality And Law Essay

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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 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...

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...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).

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