Lord Patrick Devlin

1
Lord Patrick Devlin

• Public Morality Rules
• Return to Syllabus

2
Connection Between Sin and Crime

• What is a sin?
• What is the difference between a crime and a sin?
• Do we punish offenders for being criminal of for
  being sinners?

3
What is a Crime?

• Elements of a crime
• Crimes are defined by the law
• Types of Crimes
• Felonies
• Misdemeanor
• Petty offences

4
Types of Felonies

5
Wolfenden Report

• Based on the writings of Mill
• Provided rationale to legalize prostitution
• Provided rationale to legalize homosexuality

6
Reasons Used in the Wolfenden Report

• Quote on Pages 25 26
• Indecency
• Corruption
• Exploitation

7
Wolfenden Quote

• Unless a deliberate attempt is made to equate
  the sphere of crime with that of sin, there must
  remain a realm of private morality and
  immorality, which in brief and crude terms is not
  the laws business. To say this is not to
  encourage private immorality.

8
Devlins Retort

• Morals and religion are inextricably joined
  the moral standards generally accepted in Western
  Civilization being those belonging to
  Christianity
• A State that refuses to enforce Christian
  beliefs has lost its right to enforce Christian
  morals.

9
What Is a Religious Belief?

• What makes religious beliefs different from other
  types of beliefs?
• What are some beliefs that would not be
  considered a religious belief?
• What is the difference between belief and knowing?

10
Belief and Faith

• Faith is a kind of belief.
• Not all beliefs are based on faith.

11
Fixation of Belief

• According to Charles Sanders Peirce there are
  four ways to fix a belief
• 1. Faith A priori (prior to experience)
• 2. Authority Parents, Pope, Teachers,
  Scientists
• 3. Tenacity - Will to believe
• 4. Logic Scientific Method

12
Scientific Method

• Science claims a five step problem-solving
  method.
• 1. Felt Awareness of the Problem.
• 2. Locate and Define the Problem.
• 3. Entertain Possible Hypotheses.
• 4. Choose One Hypothesis.
• 5. Act to Verify.

13
Spheres of Law According to Mill

• Legality

Morality
Liberty
14
Spheres of Law According to Devlin

Law Morality
15
Individual Protection

• Subject to certain exception inherent in the
  nature of particular crimes, the criminal law has
  never permitted consent of the victim to be used
  as a defence. p 29

16
Rationale for Law?

• Now, if the law existed for the protection of
  the individual, there would be no reason why he
  should avail himself of it if he did not want
  it. p30

17
Crimes Offend Society

• The reason why a man may not consent to a
  commission of an offence against himself
  beforehand or forgive afterwards is because it is
  an offence against society. p30

18
Sanctity of Human Life

• It is not that society is physically injured
  that would be impossible the sanctity of human
  life is violated.

19
Law and Morality

• Immorality cannot be condoned by the law.

20
Three Great Questions

• 1. Has society the right to pass judgment on all
  moral matters? Ought there to be a public
  morality, or are morals always a matter of
  private judgment?
• 2. If Society has the right to pass judgment,
  has it also the right to use the weapon of law to
  enforce it?
• 3. If so, ought it to use that weapon in all
  cases or only in some and if only in some on
  what principles should it distinguish?

21
Question One

• Has society the right to pass judgment on all
  moral matters? Ought there to be a public
  morality, or are morals always a matter of
  private judgment?
• Collective judgment does exist
• Without collective judgment corruption would
  prevail
• Collective judgment means private morality is
  corrupt
• Examples of collective judgment marriage, family
  values

22
Question One Continued

• Our private ideas of good and evil cannot be kept
  private.
• If men and women try to create a society in which
  there is no fundamental agreement about good and
  evil they will fail if, having based it on
  common agreement, the agreement goes, the society
  will disintegrate. p33.
• Conclusion there is such a thing as public
  morality and we are duty bond to follow it.

23
Question Two

• If Society has the right to pass judgment, has it
  also the right to use the weapon of law to
  enforce it?
• Morality is essential to existence of society.
• Society has the right to survive as a free
  society.
• Then society has the right to use any means to
  protect itself including laws to prohibit immoral
  acts.

24
Question Two Continues

• But if society has the right to make judgment
  and has it on the basis that a recognized
  morality is as necessary to a society as say a
  recognized government, then society may use the
  law to preserve morality in the same way as it
  uses it to safeguard anything else that essential
  to its existence.

25
Question Two Continued

• If therefore the first proposition is securely
  established with all its implications, society
  has a prima facie right to legislate against
  immorality.
• The meaning becomes clearer, immorality is
  treasonous.
• There are no limits that can be taken against
  treason or immorality.

26
Question Three

• If so, ought it to use that weapon in all cases
  or only in some and if only in some on what
  principles should it distinguish?
• Morality is a sphere in which the public interest
  and private interest are often in conflict, and
  the problem is to reconcile the two.
• Reliance on right-minded thinking.

27
What Is Moral?

• Immorality then, for the purpose of the law is
  what every right-minded thinker is presumed to
  consider immoral.
• Any immorality is capable of affecting society
  injuriously and in effect it usually does this
  is what gives the law its locus standi. It cannot
  be shut out.

28
Individual Rights?

• But and this brings me to the third question
  the individual has locus standi too he cannot be
  expected to surrender to the judgment of society
  the whole conduct of his life.
• It is an old familiar question of striking a
  balance between the rights and interests of
  society and those of the individual. p39

29
Moral Reprobation

• Intolerance
• Not Approval
• Not Acceptance
• Indignation
• Common Sense
• Disgust
• Genuine
• Not Manufactured

30
Applying Morality to Law

• 1st Principle - Toleration of maximum individual
  freedom consistent with the integrity society.
• 2nd Principle The limits of tolerance may
  shift.
• 3rd Principle Privacy should be respected as
  much as possible.
• 4th Principle Law is concerned with the minimum
  not the maximum.

31
Right-Mindedness

• If the reasonable man believes that a practice is
  immoral and believes also no matter whether the
  belief is right or wrong, so be it that it is
  honest and dispassionate that no right-minded
  member of his society could think otherwise, then
  for the purpose of the law it is immoral. p46

32
The Final Word

• A man who conceded that morality is necessary to
  society must support the use of those instruments
  without which morality cannot be maintained.
• The two instruments are those of teaching, which
  is doctrine, and of enforcement, which is the
  law.
• If morals could be taught simply on the basis
  that they are necessary to society, there would
  be no need for religion it could be left as a
  purely personal affair.p48
• Return to Syllabus