Criminal Justice
1- Please create a title for your post by putting it in bold, “header 2” as the first line of your text.
2- The purpose of this discussion is to critically reflect on what legal moralism is and how it applies to actual laws.
Here is the discussion prompt
The Hart vs. Devlin Encore Debate
Please watches this lecture on the Hart vs. Devlin Debate–
( https://youtu.be/qWrhEARupCg) THE VIDEO ON YOUTUBE 36:48 MINUTES
very relevant to our times.
Read the two cases: Bowers v. Hardwick and Lawrence v. Texas and the briefs posted.
1- How would a legal moralist such as Devlin argue in favor of the Bowers’ decision and the Lawrence dissent?
2- What would HLA Hart say about those decisions?
ANSWER
Legal Moralism is and how it applies to Actual Laws
The Hart vs Devlin debate has been ongoing for a long time and is as applicable now as it was when it began in the mid-20th century. The debate is on the grounds of law, morality and the limits of criminal law. Devlin took an idealist approach and argued that when an action or behaviour went beyond the limits of “intolerance, indignation and disgust,” then regardless of whether the acts were in public or private, the law has a right to come in and legislate against it (Oxford University Press). On the other hand, Hart argued that when an act or behaviour did not harm anyone or anything, then the law had no right to come in and issue orders, and people were allowed to have their liberties. The two greatly differed on what the law should be based on. While Devlin felt that the law should be based on a society’s collective judgment, Hart felt that the law should not be based on popular moral consensus ().
The debate can be applied in Bowers v. Hardwick case in which the philosophy of Devlin applied and won with the United Court Supreme Court. Bower, the attorney general of Georgia, argued against Hardwick, a man charged for sodomy in his bedroom’s privacy with another man. The Supreme Court ruling to uphold the anti-sodomy rules referred to the constitution and the fact that it does not provide for homosexuals to engage in sodomy. Devlin, in this instance, would have argued on the nature of the act itself, do many people consider sodomy indignant, intolerable and disgusting? In 1986, a sample population in the United States would have the answer as Yes, giving Devlin an early win. Using two of his philosophies that the law should be an aggregate of the general population feeling toward a subject and that general behaviour, whether in public or private, should generally be acceptable to the public; Devlin would have made the case against Hardwick. In a later case that overturned the ruling in 2003, Lawrence vs. Texas, the Supreme Court decided on the same issue that adults are free to engage in private conduct as an exercise of their liberty. In this case, Devlin would argue that private conduct would enable crimes such as date rapes and domestic violence to argue that the law had no right to go into people’s private lives to practice their liberties.
Hart would be appalled at the audacity of the law to walk into a person’s home and tell them what they can and cannot do. In response to Devlin’s argument that if the law kept off private residences, then crimes like domestic violence would be on the rise, Hart would refer to the second part of his philosophy where he states that provided the actions and behaviours do not cause harm to anyone or anything. Hart would also argue that the concept of finding things disgusting, intolerable and indignant is purely based on intolerance. Just because I find noodles annoying does not mean no one else should be allowed to eat them. The law cannot be based on personal preferences, whether from the general majority or minority. The law has to have some limits and grow as society evolves and becomes more accepting of initially unfathomable concepts. And lastly, the purpose of the law is to serve the people it belongs to and not the other way around where the people become slaves to a written and outdated document.
References
Justia US Supreme Court. Bowers v. Hardwick, 478 U.S. 186 (1986). Retrieved on 28th October 2020 from https://supreme.justia.com/cases/federal/us/478/186/
Justia US Supreme Court. Lawrence v. Texas, 539 U.S. 558 (2003). Retrieved on 28th October 2020 from https://supreme.justia.com/cases/federal/us/539/558/
Oxford University Press. Foundations of Criminal Justice. Retrieved on 28th October 2020 from https://global.oup.com/us/companion.websites/9780195387322/chapter3/summary/#:~:text=Devlin’s%20philosophy%20of%20law%20argued,behavior%20that%20was%20deemed%20immoral.&text=Hart’s%20philosophy%20of%20law%20held,the%20absence%20of%20other%20harms.
