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On Law and Private Sexual Morality

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The issue of law and morality has for a long time puzzled legal philosophers. It is not established whether the law should intervene in matters of morality. The question of morality is also relative, considering the fact that there is no such thing as universal morality. Certain acts are clearly considered harmful to society, and thus illegal. On the other hand, some acts are illegal by dint of statute or common law but the public does not consider them as such; that is to say that in principle they are criminal but not psychologically so. They are morally blameworthy but in the eyes of the law they do not constitute a crime. Under the common law system in Britain, crimes were seen to be morally wrong acts which deserved chastisement. However in some cases it is wrong to assign the responsibility of upholding morality, to the law. This is more so because sexual morality varies from one person to the next, especially when referring to private sexual matters. It would be difficult in this sense to decide which acts constitute crimes and which ones do not. The reality however is that the law rightly regulates some issues of morality like incest and rape. In ths case, it is clear morality influences the law. However to what extent should this influence be and where does the law draw a line between sin and crime?

Lord Devlin, who was a renowned jurist, advanced the theory that law and morality are connected and the law should be used to punish sexual immorality. Devlin advocated for the criminalization of such acts as homosexuality, prostitution, sodomy, among others, which were mainly viewed as consensual sex acts. Devlin argued that there was no such thing as public and private morality. To him morality was one and it was what held society together, and it was the duty of the state through law to maintain this morality so that society does not crumble. Lord Devlin asserted that sexual immorality was a way of taking advantage of human weaknesses and thus there should be no delimiting of the power of the state to make laws against it. According to Devlin, morality should be extracted from religion or the bible and deviation from it should be counted as a crime punishable by law.

H.L.A. Hart on the other hand argues that any argument proposing legal enforcement of morality is based on a wrong assumption. He suggests that enforcing morality would be tantamount to repressing liberty. This is because he saays that the people are coerced into obedience by the threat of legal punishment. Hart also proposes that indeed moral values form part of the law and that the best way to rationalize the laws of a society is to refer to the moral principles in that society. He also argues that what is viewed as popular morality should not be imposed on the minority group. In this way he criticizes Lord Devlin whose main standpoint was that all sexual immorality consensual or not should be punished by law. Hart also supports the 1957 Wolfenden Report stating that there should be decriminalization of homosexuality because what happens between two consenting adults is not the business of the law. He states that in no way do acts like homosexuality cause any harm to the society or cause earthquakes. He also notes that there is a distinctive difference between paternalism and morality and the two should not be confused.

In my opinion, Hart advances a stronger argument. His reasoning is broader than that of Patrick Devlin. He admits that there is a relationship between law and sexual morality, albeit a complex one. In this manner he seems more flexible in his argument than Devlin whose argument is rigidly based on punishment of all so called immoral acts.

 

 

 

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