Morals and the enforcement of values : an analysis of the Hart - Devlin debate
University of British Columbia
Master of Laws - LLM
This thesis attempts to discover out of the debate between Lord Devlin and H.L.A. Hart the theoretical basis of decision-making in cases where there is a conflict between individual moral freedom and social control. It is structured in the form of an analysis of the debate between Devlin and Hart concerning the principles for and against the enforcement of morality. There are five main chapters of the thesis and a short conclusion. The first chapter, headed "The Hart-Devlin Debate", introduces and summarises Devlin's answers and Hart's criticism to the first two hypothetical questions which Devlin addresses to himself, namely, (1) Has society the right to pass judgement at all on matters of morals?, (2) If society has the right to pass judgement, has it also the right to use the weapon of the law to enforce it? It analyses Devlin's attempt to rationally convert the descriptive proposition that the majority have power to enforce morality to the normative proposition that society ought to enforce morality. There is an observation that the co-existing "right" of individual freedom is not debated by rational argument. The second chapter under the heading "The Common Morality and the Feelings Test" sets out the feelings test as expounded by Devlin as a means to determine which rules of morality ought to be enforced. There is a specified list of the qualifications to the feelings test which Hart overlooks for the most part. However I reach the conclusion that it is difficult to authoritatively interpret these qualifications or to give them any substance. Discussion then centres around Hart's objections that the feelings test is an abdication of reason and a source of potential injustice. These objections are not sufficient basis for rejecting the feelings test. The third chapter, called "Moral Paternalism", attempts to isolate the difference in the views of Hart and Devlin by analysis of Hart's phrase "morality as such." Hart creates an artificial distinction between "paternalism" and"enforcement of positive morality," thereby attempting to explain which moral rules ought to be enforced by assigning these two labels. My conclusion is that the only rational distinction lies in the availability of empirical evidence to prove physical harm and non-availability of empirical evidence to prove moral harm. Hart has a stricter onus of proof than Devlin when it comes to proving harm to the individual. However, it is difficult to sustain the distinction of physical and non-physical harm as the basis for decisions which we “want” to make. The distinction is rendered impotent in practice by finding elements of harm to society in the action of the individual and thereby justifying enforcement of morals by using Mill's principle of liberty. Concepts of private and public harm are easily used to cloak the real basis of the decision. My conclusion is that the real difference between the views of Hart and Devlin, behind all the "principles," is a difference of value-preference. The fourth chapter, under the heading "Value Difference between Hart and Devlin" discusses the possible reasons for the differing value preferences. It questions whether value preferences can ultimately be traced to prevalent social conditions. There has always been historical debate concerning the mysterious balance between individual freedom and social control. In order to assist in identifying the personal values of Hart and Devlin, their respective theories are viewed in terms of three traditional intellectual antinomies. These antinomies involve the problem of choosing between (a) Public authority or a Platonic elite (b) Individualism or collectivism (c) Reason or faith; intellect or intuition Both Hart and Devlin stand in definite historical intellectual positions and their theories can be compared to the writings of numerous legal and political philosophers. I agree with those writers who argue that a conflict between two ultimate values cannot be settled by reason. Can we argue that Hart's value preference for individual freedom in moral matters is subject to question due to modern social conditions? The fifth chapter is given the name "The Irreversible Disaster Argument." This section analyses Devlin's original argument that society has the right to preserve its common morality. Justification of this argument is attempted in terms of the right of society to prevent ''irreversible disaster." This is an attempt to derive a guiding principle from an extreme fact situation in order to assist to decide the deadlocked values. In times of emergency or threatened disaster, the value of individual freedom ought to he subordinated to other values. An analogy is drawn between Devlin's arguments for the preservation of morality and current arguments for the preservation of the environment. However Devlin's arguments for the enforcement of morality, even in terms of the principle of irreversible disaster, can be met by several unanswerable objections. A short attack is made on Devlin's theory by a similar device of applying the theory to a possible interpretation of modern social conditions. However this criticism does not enable us to subordinate Devlin's value-preference either. The conclusion is that Hart and Devlin have different value-preferences and their pronounced theoretical principles only dress these preferences with the garb of rationality. Ultimately they are only able to state the theories which they develop to support their personal values and cannot explain why.
Law, Peter A. Allard School of