Firstly it must be established that the theories encompassing a definitive “morality” is an invalid approach in our criminal law system, as well as being in the direct opposite of the harm principle theory. The most famous legal moralist Patrick Devlin discussed this theory in his book “The Enforcement of Morals”:
[I]f 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. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. (Devlin 1965, p. 10)
Legal moralism therefore denotes that the government has not only the responsibility to use its policies to be a guardian of public order and protector of non-independent persons, but also the responsibility to maintain a common morality within society. The government then has recourse to criminal law in response to behavior that threatens the “established morality” and to prevent the disintegration of society through loss of a “common morality”, an essential element of social cohesion and economic prosperity. A report written by Ian Campbell submitted to the Le Dain Commission in 1972 applied legal moralism to drug use. His disapproval of drug use stemmed from legal moralism in that users should be condemned for their choice of “vice” over “virtue”. This approach justifies drug prohibitions on the basis of morality rather than public health. However, this is an inability to separate immorality and illegality, two very different terms.
Under the doctrine of Positive Freedom, activities are made illegal because they are “bad” for the person. Essentially, it is forcing someone to act in his or her best interest...