Lord Patrick Devlin's Views on The Enforcement of Morals via Legislation.

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Introduction

Lord Patrick Devlin was a prominent judge in Britain from 1948 until 1960. In 1965 Devlin authored a book entitled "The Enforcement of Morals" which focuses on the view that popular morality should be taken into consideration when making laws and enforcing them. His book is intended for the educated audience for example legal scholars, university students and even the law-makers of the time and aims at persuading these people that public morality should govern our legal judgments. Focusing in particular on Chapter I, Devlin creates balanced arguments both for and against his view by using both legal and moral examples of the time (such as homosexuality and prostitution) with a constant reference to the existence of a public morality which he believes cannot be ignored. This report elaborates on the arguments and examples put forth in the text.

The Wolfenden Report

Released in 1957, The Report of the Committee on Homosexual Offences and Prostitution was outlined that what was done in private is the business of the individual and should not be subject to intervention by the state.

The report recommends the function of the law regarding these acts and stated that "its function, [as we see it] is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence" and it is not "the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour" .

Devlin's Central Thesis

Devlin's central thesis throughout the text is that the morals of society should be enforced via legislation even with the possibility of aggravating the people whose actions threaten those morals. His theory is one of a "community of ideas" in which the "reasonable man"3 deems acceptable.

Devlin's Definition of Morals

Devlin defines morals as "the viewpoint of the man in the street" or for Devlin's purpose "the man in the jury box, for the moral judgment of society must be something which any twelve men or women drawn at random might after discussion be expected to be unanimous."3 He adds that the views of "the reasonable man"3may be "largely a matter of feeling"3 rather than reasoning.

Devlin's Arguments

Homosexuality

At the time, homosexuality was illegal in England which Devlin feels is justified. The Report on the other hand, recommends that homosexuality be decriminalized on the grounds that a persons sexual interest behind closed doors is not the business of the law .

Devlin explains that it should remain prohibited based on the "existence of a public morality which condemns homosexuality and prostitution" . He makes the comparison to the institution of marriage by saying that we subscribe to this idea as a matter of moral principle based on Christian beliefs. There is nothing to say that this is in fact the right way of life in this instance, however, Devlin points out that this institution has been ingrained in the law of society and if a man "wants to live in the house, he must accept it as built in the way in which it is" .

As mentioned in "Devlin's Definition of Morals" on page 2, a man may draw his viewpoint "largely as a matter of feeling"3. Devlin explains this further when discussing homosexuality by saying "I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached."

Prostitution

Prostitution was not an offence in England at the time and was another issue of morality commonly discussed. Devlin's view was that prostitution should be outlawed and that the recommendations of The Wolfenden Report were illogical in this matter.

The Report...
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