HART DEVLIN DEBATE

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 INTRODUCTION

• Morality can be defined as a set of rules or principles that guide the process of making decisions

and behavior in society. It also includes principles that define what is acceptable and unacceptable

in society. On the other hand, law refers to principles that augment and maintain the morality code

in society.

• The issue of law and morality is a complex matter that has been widely discussed in various fields

including religion, law, and psychology.

• Many debates have discussed the relationship between morality and law. For instance, the Hart and

Devlin debate tried to determine this relationship. Each of the two took a different side in an effort

to establish the role that should be played by law with regard to morality. However, their views and

suggestions contradicted each other and did present an agreement.

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 • The two represent two schools of thought regarding the matter. The Wolfenden Committee

investigated the critical issue of allowing homosexuality and prostitution in society. The report

of the committee stated that it is not the responsibility of law to solve immorality. The Hart-

Devlin debate was an attempt to contribute to the findings of the Wolfenden committee.

• The debate was between Professor Hart and Patrick Devlin. The argument was that

homosexuality should be made legal because of the freedom of choice and the privacy of

morality. The recommendations of the committee emanated from the principles of

utilitarianism. The law is not supposed to interfere with the lives of people as a way of

influencing behavior.

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 HLA HART- A professor of jurisprudence DEVLIN- A sitting judge
at Oxford University
Argued for legal moralism, which is the idea

Argued for legal positivism, which is the that morality is the basis of law.

idea that there is no necessary

connection between law and morality.

One well-known set of exchanges was the debate between Lord Devlin, a highly regarded
judge, and Professor H.L.A. Hart, a leading jurisprudential scholar, between 1959 and
1965.
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 THE WOLFENDEN COMMITTEE (1954-1957)

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 THE WOLFENDEN COMMITTEE (1954-1957)

• The Wolfenden Committee, officially called the Committee on Homosexual Offences

and Prostitution, was a British government inquiry formed in 1954.
• Its primary focus was to examine the law regarding homosexuality and prostitution,
which were both criminal offenses at the time in the UK.
• The committee, chaired by Sir John Wolfenden, was tasked with investigating whether
the law should be reformed. After careful deliberation, the Wolfenden Committee made
a groundbreaking recommendation:

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 •Homosexuality between consenting adults in private should no
longer be criminalized.
•The committee argued that private, consensual sexual acts between
adults were a matter of personal morality and should not be regulated by
law, as long as they occurred in private and without public harm.

This was a significant shift in societal thinking and laid the groundwork
for later legal reforms, including the Sexual Offences Act 1967, which
decriminalized homosexual acts between consenting men over the age of
21 in private.

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 He believed the law should only regulate actions that cause harm to
others and that personal, consensual conduct in private should be outside
HLA HART the scope of legal interference, even if society considers it immoral.

Key points
• Law should only prevent harm: According to Hart, the law should be
concerned with preventing harm to others. If an action does not harm
anyone else, it should not be criminalized, regardless of whether society
views it as immoral. For example, homosexuality between consenting
1907-1992 adults in private should not be a criminal offense because it does not
LIBERAL harm anyone else.
PERSPECTIVE • Moral values and legal principles: Hart argued that there is a distinction
between moral values and legal principles. The law should not enforce
specific moral values unless they are linked to harm. While laws should
align with the moral views of the majority in many cases, they should
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 • Tolerance of personal liberty: Hart believed that individual freedom and privacy were
fundamental rights. People should have the liberty to live their lives as they choose,
provided their actions do not harm others. Criminal law, in his view, should be limited
to preventing harm and protecting individuals' freedoms.
• Example from the debate: Hart used the example of homosexuality to argue that
consenting adults should not be criminalized for their private actions. He believed
society should tolerate private, consensual activities even if they are seen as immoral
by some, as long as they do not harm others.

Hart’s Influence: Hart’s view helped shape modern liberal legal philosophy, especially in
the context of personal rights and individual freedoms.
•He argued that the right to privacy should be respected and that the law should not
impose moral judgments on personal matters.

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 • Patrick Devlin (1905–1992) was a British
judge and legal scholar who took the opposite
view to Hart. Devlin believed that the law
should enforce society's moral standards,
even in private matters.
• He argued that moral order is vital for a
society's stability, and behaviors deemed
PATRICK DEVLIN
1905-1992 immoral must be regulated by law to maintain
The Conservative Perspective social cohesion.

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 KEY PONTS:
• Society’s moral values are essential: Devlin believed that law exists not
only to prevent harm to individuals but also to uphold the moral order of
society. In his view, shared moral beliefs and values were crucial for
social cohesion. If behaviors that violate these morals are allowed, the
fabric of society would start to decay.

• Moral behavior and social harm: While Devlin acknowledged that some
actions might not cause direct harm to others, he argued that they could
still be damaging to society’s moral integrity. For example,
homosexuality may not directly harm others, but it could undermine
social morality, which he viewed as harmful in the long term. 11
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 Legal enforcement of morality: Devlin contended that it is the duty of the
law to maintain public morality. He argued that society has a right to
protect its moral foundations, and therefore, the law should intervene in
cases where personal conduct threatens the moral health of society. The
law should uphold public moral standards, even if those actions are private
and consensual.

Example from the debate: Devlin used homosexuality as an example of

something that should be prohibited, not because it causes harm to others,
but because it goes against the moral beliefs of the society and would
undermine social order if tolerated. He argued that society has a right to
criminalize immoral acts, even in private, to protect itself from moral
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 Devlin’s Influence:

• Devlin’s views were aligned with a more conservative and

communitarian perspective on law. He emphasized the role of law in
protecting the moral fabric of society.

• His views can be seen in debates about issues like same-sex marriage,
drug use, and other behaviors that some see as private but others
consider immoral.

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