law ch 20 - HLA Hart

main argument

Hart examines and challenges Devlin's argument that society should be able to enforce shared morality through criminal law.

hart’s stance

just because society believes something is morally right does not automatically mean it is justified for the government to punish people for violating that belief.

• He argues that we must distinguish between what society believes is moral and what is actually morally justified.

positive morality

Morality accepted and shared by a particular social group.

critical morality

General moral principles used to evaluate social institutions and accepted moral standards.

• (The principles we use to question whether society's beliefs are actually justified.)

Hart explains that there are two different moral questions involved in enforcing morality.

Question 1: What does society consider morally right or wrong?

Question 2: Is it actually morally right for the government to punish people for violating those standards?

Why does government interference require justification?

• the government needs a sufficiently good reason to justify restricting someone's liberty.

• Hart believes we must carefully examine the reasons behind laws instead of assuming that all restrictions are justified.

Hart identifies two aspects of enforcing morality through law:

1. Actual punishment: Punishing the individual who violated the law.

2. Coercion of obedience: Using the threat of legal punishment to make other people obey.

Paternalism vs. enforcing morality

Hart argues that Devlin makes a mistake by treating different reasons for government interference as though they are the same.

paternalism

interfering with someone's freedom to protect them from themselves.

Example:

• The law does not allow someone to consent to being murdered.

enforcing morality (legal moralism)

Interfering with someone's freedom because society considers their behaviour morally wrong.

• ex. Criminalizing private behaviour simply because the majority disapproves of it.

Why does Hart disagree with Devlin's argument about consent?

• Devlin argues that the criminal law's refusal to accept consent as a defence to certain offences demonstrates that the law enforces society's moral standards.

He argues that there is another explanation: paternalism.

• The government may restrict certain actions to protect individuals from serious harm, rather than because society considers those actions immoral.

Hart distinguishes between two versions of Devlin's argument.

moderate thesis

extreme thesis

moderate thesis

Shared morality is necessary to hold society together and help it function.

extreme thesis

Society should enforce morality even when behaviour does not directly harm anyone, because immoral behaviour threatens the shared moral foundation of society

what does devlin support in hart’s mind

Hart believes Devlin appears to support the moderate thesis, but his reasoning seems to move toward the extreme thesis.

Why is extreme vs moderate thesis important?

Hart argues that recognizing the importance of shared morality does not automatically justify criminalizing every action that violates it.

• A society can have shared values without making every moral disagreement a criminal offence.

key takeaway

Hart challenges Devlin by arguing that the fact that society accepts a moral standard does not automatically justify enforcing it through criminal law.

He emphasizes the importance of distinguishing:

• Positive morality from critical morality.

• Paternalism from enforcing morality.

• The moderate thesis from the extreme thesis.