Law and Justice in a Globalised World

2nd Sept, 2016

National University of Study and Research in Law,

Ranchi
Law and Justice in a Globalised World
LL.M. (Semester I)
-Khushbu Prasad

Answer should be in brief and to the point.

1. Ought immorality to as such to be a crime? is one such

question that has been debated among legal philosophers and
thinkers since long. Hart-Devlin debate is one such instance of
philosophical engagement with the question that has previously
seen similar debate between James Fitzjames Stephen and John
Stuart Mill. Therefore, in view of the above, analyse critically the
following issues:
a) Boxing should be banned given the potential threat to the
participants.
b) Pornography.
c) Laws relating to prevention of cruelty to animals.
d) Homosexuality.

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Background: The enforcement of morals through legal sanctions is not a new topic to legal
philosophers. It has, in the past decade, been the object of new and thorough examination,
though it is still open to further discussion. It is years since H.L.A. Hart published Law,
Liberty and Morality, which marked the beginning of the H.L.A. Hart and Patrick Devlin
debate concerning the enforcement of morality by the criminal law in context of a proposal
by the Wolfenden Committee in 1957 chaired by Lord Wolfenden to decriminalize male
homosexual activity in private. It is since James Fitzjames Stephen published Liberty,
Equality, Fraternity, which initiated a similar debate with John Stuart Mill. Both of these
debates concerned the legitimate role of the use of criminal sanctions to punish immoral
conduct. As Hart framed the issue, the question can be formulated as: Ought immorality to as
such be a crime? It is claimed that Mill and Hart say that the answer is "No"; it is said that
Fitzjames Stephen and Devlin say "Yes."
Introduction:
In Great Britain, in 1957 Wolfenden Committee issued its Report on the Homosexual
offenses and Prostitution, which recommended that there must remain a realm of Private
morality and immorality which is .... not the laws business. The committee behind the
report contained Lord Devlin, a prominent Judge and the academic Prof. Hart. The report
recommended the the legalization of Homosexuality and prostitution on particularly
Utilitarian basis that the law Should not intervene in the private loves of citizens or seek to
enforce any particular pattern of behaviour further than necessary to protect others. Hart
who proceeds from John Stuart Mills utilitarian, stating that legal enforcement of a moral
code was unnecessary because pluralist society wont suddenly disintegrate, undesirable as it
would prevent development of morality and in fact morally unacceptable as it interferes with
individual liberty. Devlin, on the other part, had strongly opposed to the report, on what
might be cited as a natural law approach. He felt that society had a certain moral standard,
which the law had a duty to support, as society would disintegrate without a common
morality a point which, as we have seen, Hart disagreed with. Devlin felt that this morality
should be based on the views of the right minded person, and that the legislature should
adhere to three basic principles: Individuals should be allowed as much freedom and privacy

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2nd Sept, 2016

as is possible without compromising this morality; Parliament and the judiciary should be
very cautious about altering laws concerning morality, and that punishment should be used to
prevent actions abominable to right-minded people; the law should also only state the
minimum of acceptable behaviour, society should have far higher standards.
Hart interpreted Devlins case for what has come to be called Legal Moralism or Legal
enforcement of morality as resting on two arguments, which he dubbed Moderate thesis
and Extreme thesis. According to Moderate thesis, a society is entitled to enforce it
morality in order to prevent the society falling apart at the seams, as it were. According to the
latter, a society is entitled to enforce its morality in order to preserve its distinctive communal
values and way of life. Therefore, in view of the above, the following issues are critically
analysed:
1. Boxing should be banned given the potential threat to the participants: Because
physical harm seems to be the sports chief objective, boxingthe centuries-old art of
hand-to-hand combathas long been under fire from both legal and moral activists
who call for its proscription. Most recently, when doctors induced a coma to curb the
injuries of a heavyweight boxer after a nationally televised prize fight, activists
reignited calls to ban boxing. The lasting question of the sports morality recalls the
famous debate between Lord Devlin and Professor Hart on the legal enforcement of
moral principles, which provides a bifurcated view on morality and a useful way to
evaluate the ethical legality of boxing. Lord Devlins legal moralism and Professor
Harts harm principle may seem diametrically opposed, but neither perspective
demands a ban on boxing. Boxing prepares its participants for society, and boxers
understand the dangers inherent to the sport. Therefore, even though the two sides of
the Hart-Devlin debate reference different justifications for the enforcement of
morals, neither Lord Devlin nor Professor Hart would approve of boxings
proscription.
2. Pornography: Liberalism has, in modern times, come narrowly to construe harm and,
with it, the role for legal prohibition and regulation. It has been applied to break down
a number of social and legal taboos surrounding sex and reproduction. Let us take
pornography as examples. The idea is that as we have no evidence of any connection
between social or individual harm here and now and pornography, there can be no
prohibiting it. Certainly the harm to others principle has been influential in a number
of twentieth-century reforms.

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Pornographic displays in private are widely accepted, whereas the same displays in
public would be considered too offensive to be permitted. Devlin, I think, would deny
that there is any principled reason for taking this attitude to what is offensive when
seen but not towards anything that might be offensive when merely known to occur,
or known to occur legally. Simply knowing that pornography is being indulged in
tends not to bother us (although it might some), but what about cannibalism,
necrophilia, bestiality, and the like? To avoid any gray area concerning the rights of
dead people or living animals, let us take the particularly offensive example of
necrophilial bestiality. This harms no one, but few people would consider it an
acceptable practice on condition that it is done in private. We might say the same
about child pornography, if it were somehow produced without harm to the children.
Closing the door does not remove the offensiveness in such cases. One could say that
what Devlin is arguing for is simply an extension of the offense principle or, if
bestiality and such acts do harm, of the harm principle. This is no objection though.
Devlin's objection to certain immoral acts just is that they do harm because they
violate the core values that hold society together and thus make a good life possible.
Our feelings of offense or outrage are an indication that we are aware, however dimly,
of this harm being done, or at least threatened. It does not matter whether we call this
legal moralism, or an extension of the offense principle, or an application of the harm
principle. What matters is that there is no private sphere. This is perhaps not the
fiercest defense of gay rights, or liberal principles in general, that one might want. But
it is at least a sketch of a line of defense, and a line that avoids the errors that appear
to me to bedevil Harts critique of Devlin. Extreme conservative views will never be
well defeated until they are properly understood. If nothing else, I hope that I have
furthered such understanding here.
3. Laws relating to prevention of cruelty to animals: Morality represents the principle
of good behaviour. It deals with the principles of right and wrong. It relates to good
and virtuous living. It helps to understand the difference between right and wrong. It
is equal to righteousness and honesty. Prof. Hart says that some shared morality is
essential to the existence of any society. Hence the Law continue to support a
minimum morality. Each society has evolved certain moral institutions from part of its
own particular fabric. Lord Devlin says, Moral institutions are necessary to the
existence of particular societies. Morals are part of law when these are viewed in the

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context of social life, and they enter into the broadest concept of harm to others.
tion." It is this feeling of disgust that is taken, in Lord Devlin's view, to justify the
criminal prohibition of cruelty to animals.
The prohibition of cruelty to animals had earlier been considered by Bentham as an
exercise in the theory of utility. No one proposes to relegate that or any other form of
sadism to the realm of private morality or to allow it to be practiced in public or in
private. It would be possible no doubt to point out that until a comparatively short
while ago nobody thought very much of cruelty to animals and also that pity and
kindliness and the unwillingness to inflict pain are virtues more generally esteemed
now than they have ever been in the past. But matters of this sort are not determined
by rational argument. Every moral judgement, unless it claims a divine source, is
simply a feeling that no right-minded man could behave in any other way without
admitting that he was doing wrong. It is the power of a common sense and not the
power of reason that is behind the judgements of society.
4. Homosexuality: The Wolfenden proposals have been described as 'shockingly
pragmatic' and this is true in the sense that they came up with concrete proposals to
deal with perceived social problems in practical, and, as it turned out in the long run,
widely acceptable ways. But there was a coherent framework behind the proposals
published in 1957 which was to be enormously influential for the rest of the century,
and not only in Britain. The recommendations were based on two axes: between
private and public, and between legal moralism and utilitarianism. The philosopher of
utilitarianism, Jeremy Bentham had classed homosexuality as an 'imaginary offence'
dependent on changing concepts of taste and morality. The greatest of his successors,
John Stuart Mill, had argued in On Liberty that the only justification for legal
intervention in private life was to prevent harm to others. Wolfenden took up these
arguments and agreed that the purpose of criminal law was to preserve public order
and decency, and to protect the weak from exploitation. It was not to impose a
particular moral view on individuals. So it followed, in the Wolfenden logic, which
the law should at least partially retreat from the regulation of private behaviour,
however distasteful the majority of the committee (and the population) felt it to be,
whilst at the same time the law must continue to intervene, more strongly if necessary,
to sustain public standards. Just as prostitution in itself was not illegal as a private
activity, there was no real logic in homosexuality in private being illegal. Hence, the

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thrust behind the two main recommendations. The report proposed that the law
against street offences should be tightened to eradicate the public nuisance of
prostitution. But at the same time it proposed that male homosexuality in private, for
consenting adults, should be partially decriminalised, whilst penalties for public
offences should be increased.
In the first place, it shifted perceptions about the role of the law in enforcing sexual
morality. The report generated an immediate debate, in the famous Hart-Devlin
controversy. Lord Devlin in his Maccabean Lecture in 1959 firmly reasserted the
absolutist view that 'society cannot live without morals', and that it was fundamental
to society that laws be based on morals, or at least on 'those standards of conduct
which the reasonable man approves'. However, the more pragmatic view endorsed by
H.L.A Hart and encoded by Wolfenden, effectively saying that the law's capacity to
change private behaviour was limited, was the one that prevailed. This was not after
all a call to rip down all barriers. It was not in any sense a libertarian charter. For
many subsequent critics the Wolfenden position put forward a more effective strategy
for societal regulation than an outdated and distrusted moralistic legal framework. The
recommendations themselves would have seen only a modest diminution of the prison
population, while the Sexual Offences Act of 1967 actually increased penalties for
public displays of homosexuality, leading in the immediate aftermath of 1967 to an
increase in prosecutions. The privatising of homosexuality could be seen as a more
effective way of controlling it.
The second point to note is that this new framework for regulation had differential
impacts on men and women, and on heterosexually- and homosexually-inclined
people. The Street Offences Act in 1959, a direct result of Wolfenden, drove women
off the streets by increasing fines and imprisonment. But it led at the same time to a
reorganisation of prostitution, resulting in a huge expansion of massage parlours and
call-girl rackets, under the control of men.
Thirdly, Wolfenden articulated a view of homosexuality that was to be immensely
influential both for women (although the section of the report addressing
homosexuality was not directly concerned with them) and for men. For in a real sense
it bought the idea of a distinctive homosexual identity and way of life into the law for
the first time. Prior to 1957, homosexuality as such had had no presence within the

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law at all. It had been dealt with under legislation relating to 'unnatural offences',
gross indecency, importuning and the like. In order to provide a more modern
framework Wolfenden had to conjure the homosexual into being. The committee
'discovered', even invented, the meaning of homosexuality as sexual identity, sexual
practices and forms of knowledge. A new form of sexual wrong was invented in order
that it could be righted, through decriminalisation. Although Wolfenden hardly
endorsed homosexuality, it recognised that for many it was an irrevocable destiny.
Behind Wolfenden's framing of the issues was a broad tendency away from ethical
collectivism towards the individualisation of decision making, and a feeling that the
autonomy and self-determination of individuals should be respected. Wolfenden, the
classic re-statement of legal liberalism in the 1950s, offered a framework for the
expression of self identities that pointed forward to the new opportunities of the 1960s
and beyond. Lesbians were to benefit from this shift alongside homosexual men.