HUMA 1825 Note 15
- How is Mill’s position natural? It should be easy to imagine why the
government should make laws to regulate people’s private morality
o If its not hurting anyone, its consensual, then why should the
government interfere with that?
The government is not only allowed, but has a positive duty to
regulate private morality.
- Dworkin tries to respond Mill’s perspective in a stronger-type of objection
and a reply to Devlin.
o Think not only of justice but also justification.
- Begins with the Wolfenden report
o Overhaul of criminal law in England about morality
Prostitution, homosexuality and gambling
Devlin evaluates this
o He rejects the assumptions that inform this report
o He starts by saying that the problem of lawmakers it often seems that
they have very arbitrary reasons for deciding a certain practice is
criminal or not criminal
There should be a law against that because it seems right
Devlin wants to think things through
When law is legislated about morality, they lose respect
if they appear arbitrary or illogical – you need the laws
to be grounded socially, accepted to be perceived as
deserving respect, and preserved by people.
o It says that private immorality is harmless.
Immorality (deeming something immoral) as long as it doesn’t
affect by it (injured, hurt, or coerced) then it shouldn’t be
criminal or punished
It is not enough for something to be immoral to be targeted by
In addition to being immoral it has to harm someone to
Devlin argues and challenges the view that private
immorality can ever be harmless.
o Even though its consensual and private, it
doesn’t mean that its private
- He evaluates the position that private immorality shouldn’t be sanctioned
o He described three types of thinking that hold this view
First: agnostic person: this is someone who believes that there
is a right and wrong, he believes in a universal, moral law. He
also thinks that people should decide on their own. This is consistent with the idea that morality should be
Second: deeply religious position: this believes that ultimately
it is not up to the individual to decide on morality, and up to
god. Therefore, human law has no business interfering in
eternal moral truths. Leave that work to god – god will judge
Law is too blunt an instrument – it will do more harm
than good. There is an arrogance or pride trying to play
god on earth.
Third: this amounts to a nihilistic position that doesn’t believe
that any universal aspect of law is possible. It is diverse and up
to individual choice, therefore it can’t really happen.
It’s a general skepticism against any real type of
- Devlin has three arguments against this whole perspective.
o Those three personalities agree with one thing: the law should not
regulate private morality. Morality is a private matter.
o First argument: (Devlin pg.4) he says that for him as a judge it would
be very difficult to rule about sentencing someone for a crime – how
do you make a decision about that if you don’t have a sense of shared
morality with people. You need some guidance from your community
to make specific calls. It’s not just rule-bound; you have to feel it.
“I should feel handicapped if I felt like I was addressing an
audience that had no sin”
o Second argument: (Devlin pg.6-7) there are a lot of actions that we
criminalize that would count as private, consensual activities – he says
that if you look at our consent laws, you will realize that consent can
never be used as a defence. I can’t give you my consent to kill me,
therefore fading away the criminality.
He mentions euthanasia, suicide, abortion, killing-pacts, incest,
They’re all consensual activities, therefore, they would
(through Mill’s harm principle) be allowed. Since the
liberty of one person is not being interfered with by
o You’re allowing people to decide to do what they
want to for themselves.
This is a weak argument because he implicitly suggests that
either you decriminalize all those things, or, you acknowledge
that it is okay to criminalize actions that we would deem to be
immoral, even though they’re just private.
This leads him to a consideration of why our legal system is
mixed in this way. We acknowledge that in one hand, there is a
concern for law, on the other there isn’t Big part of the argument: you can ask where these laws against
certain behaviours come from. They come from our religious
past. Before, religion was our dominant influence, therefore
there are some behaviours that are deemed criminal for
We are now in a secular world and we have dropped the
dependence on religious doctrine, and now making society
function and maintaining order. There’s a neutral to keeping a
smooth, functioning society.
Therefore, if you want to make a strong argument for legal
moralism, you have to make a secular argument – it has to be
about the proper functioning of society.
o Fourth argument (Devlin, pg 10.) he defines what a society/
community is. If you think about what it is, it follows a community of
ideas. Without sharing ideas on politics, morals and ethics, no society
can exist. Each one of us has ideas of what is good and evil – it cannot
be held private in a society where we live. F men and women try to
make a society in which there are no fundamental agreements they
will fail. If there is a common agreement that isn’t maintained, it will
Society isn’t something that is held phyisically, but instead held
in the common bonds of thought – if it was too loose the
members would fall apart. The bondage must then be hard.
The bondage is an obligation of mankind, therefore society
must pay the price.
He defines society, and then certain things follow: society is a
community of ideas, if we must protect society, we must
protect the community of ideas.
If we don’t do this our society will disintegrate.
Lawm that is responsible for defending a community, must
- This is a tradition that stretches far back. This is an idea that you can have
great institutions and rules, but if you don’t have a moral sentiment, if the
people don’t follow the spirit of the rules, then that institution will not
o We’ve seen this in Aquinas – natural law is an inclination. We
acknowledge good and evil and that helps us find human law
You can’t have human law without the sense of morality to
know what is right and wrong
- Even Hart says that you cannot erase morality, despite separating it
- Fuller and his social aspirations that people have expectation of each other’s
behaviour are really necessary for a legal system to work. There’s a moral
legislation that these rules presuppose.
o Devlin - A society is a community of ideas, and if there is no
commonality then people are not on the same page, and do not have
the same expectations of each other’s behaviour. They do not draw from the same criticisms of behaviour. It’s the evaluation that matters
and that isn’t reducible to law, but through a commonality of feelings
What does it mean?
- Harm – anything that is against the commonality of feelings causes harm
- Devlin pg14. The law, therefore, should legislate morality, should defend
certain views. There is no theoretical limit to the reach of law.
o This means you don’t wait for a problem to become a crisis – you
know that your society depends on a certain common feeling. You
don’t wait for it to blossom; the law has a responsibility of being
active to maintain the cynic virtues and sentiments that make a
Devlin pg15. This morality that needs to be defended by law is
not determined (decided) by rational argument, but by
He says that we need a jury – through this we
acknowledge that leaving it up to average members of
society and the public to decide morality, you realize
that what we’re talking about is not a specialized
knowledge, but something that is broadly shared.
o This is an appeal to community.
- If morality is just private matter, then the law has no business in dealing with
it through Mill, however you wouldn’t be able to practice law if you don’t
have a sense of communities values, this is why we have a jury system, laws
against denying the using defence or justification for a crime, we have
moralism in place of our legal system
o This suggests that this is important to us, and why it’s necessary.
It’s not just about having the right rules, but the right feelings.
- Law is now a minimum standard we use for regulating and maintaining
society. However, it doesn’t give the maximum aspiration for maintaining
society – it is moral
o Page 19: the last and biggest thing to remember is that the law is
concerned with the minimum and not the maximum.
Morality goes to the heart and motivation that people have for
following or not following laws. It goes to a very reflexive and
We can’t make rules about this – it is inherently limited
- The relationship between law and morality is very unstable – you need to
make decisions when you’re trying to found the boundary when law should
interfere with morality
o When you want to make these decisions you can’t have a cookie-
cutter approach Page 21 - It’s a coastline that constantly changes case by case.
Give people elbowroom to make calls based on how they can
evaluate their situations.
It is like a line that divides land and sea – a coast line of