The renowned and much analysed Hart v Devlin debate on the legal enforcement of morality saw its origins in the publication of the Report of the Committee on Homosexual Offences and Prostitution (hereafter referred to as "the Wolfenden Report").
The committee concluded that unless society made desirable attempts to lawfully equate the sphere of crimes in private morality which is separate from law will be exposed. However this did not encourage pubic immorality rather homosexual behaviour between adults who consented should no longer be a criminal offence under Sexual Offences Act 1957. Nonetheless two years later Lord Devlin criticised this report in his book the ‘The Enforcement of Morals’. Professor Hart supported the general proposal of this report and attacked Devlin’s argument.
Devlin wrote and published 'The Enforcement of Morals', in which he argues that morality is part of the fabric of society and that immoral conduct therefore presents a clear threat, the neutralisation of which takes precedence over individual freedom. “Devlin argued that one of the essential elements of a society is a shared morality.”'The maximum individual freedom that is consistent with the integrity of society' should be determined based on the 'intolerance, indignation and disgust' of ordinary people. This viewpoint has been co-opted by religious and other strongly conservative groups campaigning against binge drinking and cheap sale of alcohol. He argued that the policing of vice e.g. alcoholism is as important a function of the law as the policing of subversive activities. Devlin contended that it is as difficult to delineate the realm of private morality as it is to ascertain one relating to private subversive activity. He submitted that an acknowledged moral code is as necessary to society’s existence as a recognised government and that its maintenance is equally important. Hence, he argued that one who is no apparent menace to others may, by his immoral conduct, jeopardise part of the moral establishment on which society is based. Given that every society is entitled to preserve its own existence, he submitted that it follows that it has the right to employ the institution of the criminal law and its sanctions to enforce that objective. Lord Devlin postulated the test that every moral judgment should be determined on the fundamental basis that no right-minded man could act in any other way without admitting that he was doing wrong. Such a question should be left to the judgment of a jury of peers, where the decision could be left to a matter of feeling and conscience. His Lordship thereafter attempted to set in place a threshold for the intervention of the criminal law. He argued that the law was entitled to intervene to address behaviour that aroused feelings of indignation and disgust in society.
H.L.A. Hart, a confirmed and dedicated positivist and liberal, disagreed with Devlin in 'Law, Liberty and Morality', published in 1963. He argues against fixing the morality of a society by cementing it in place with law, since morality is a social standard which changes as the society changes and develops, 'consistent not only with the preservation of society but with its advance'. “The problem is that beliefs about moral matters change.” This is not something which must...