INTERCONNECTION BETWEEN LAW AND MORALITY WITH REFERENCE TO HART-DEVLIN DEBATE AND HART-FULLER DEBATE

HART-DEVLIN DEBATE

The Wolfenden Report was a 1957 British government report that recommended decriminalizing private, consensual homosexual acts between men and addressing prostitution. The report proposed that there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.^[1]

The finished report recommended that consensual homosexual acts between men over the age of 21 in private should no longer be a criminal offence. It did not address homosexual acts between women, since there was no UK law in place prohibiting such acts. When it came to prostitution, the Wolfenden Report’s recommendations were much more punitive. Rather than advocating a move toward decriminalization, it recommended lowering the burden of proof for soliciting charges.^[2]

First in a 1959 lecture to the British Academy and then in a series of follow-up publications, Devlin argued that it is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. According to Devlin, no society could exist without certain shared moral principles. These principles act as a kind of glue that keeps society from breaking apart. Society has a right to safeguard anything essential to its existence, so society has a right to articulate and safeguard these unifying rules of public morality.^[3]

In some cases, it may be necessary to use the criminal law to preserve shared moral standards, even if the prohibited conduct poses no obvious or direct threat of social harm. Every violation of society’s shared moral code is an attack on that code. By violating society’s shared morality, a moral offender attacks the moral code of the society. This, in turn, may weaken people’s allegiance to that moral code, and possibly their allegiance to morality itself. This corrosive effect maybe compounded if the immoral behaviour is permitted by law. For then some citizens may perceive the law as ‘condoning’ vice and thus lose respect for the law and the state. History teaches us that the risk of social collapse due to moral weakness or discord is very real.^[4]

According to Hart, all individuals possess an inherent right to freedom; they are not allowed to use that right when it violates the right of others. Hart argues for legal positivism and emphasizes the importance of individual autonomy. Hart believes that judges should have strict rules to apply; he is critical of judicial discretion and emphasizes the importance of having clear rules in society. A society governed by the rule of law can prevent, or at least limit, the arbitrariness that surrounds decisions made by those in power.^[5]

Hart supported the Wolfenden Committee’s recommendation and responded to Devlin’s arguments concerning the application and role of the law. Resting on the philosophy of legal positivism, he claimed that the law should not comply with populism principles and the majority’s ethical norms since their perceptions and ideas are frequently impure with prejudices, biases, and superstitions. Instead, the law possesses only one role, that is to protect people from harmful or dangerous actions of offenders.

THE ONLY PURPOSE FOR WHICH POWER CAN RIGHTFULLY BE EXERCISED OVER ANY MEMBER OF A CIVILIZED COMMUNITY AGAINST HIS WILL IS TO PREVENT HARM TO OTHERS.^[6]

Does this mean that Devlin was in favour of criminalizing all immoral acts? Not exactly.

Devlin gave the following “elastic” guidelines which should be kept in mind^[7]:

1. MAXIMUM INDIVIDUAL LIBERTY SHOULD BE ALLOWED CONSISTENT WITH THE INTEGRITY OF SOCIETY- Mere social disapproval of ‘immoral’ conduct is not enough to warrant criminal penalties. There must be a real feeling of “intolerance, indignation, and revulsion” and no dispute that the conduct is immoral and deserving of punishment. In determining such matters, lawmakers should look to conventional moral standards, not religious norms or the standards of ‘enlightened’ or ‘critical’ morality. The test is whether a “reasonable man” would find the conduct reprehensible and beyond the limits of tolerance.
2. LAWMAKERS SHOULD KEEP IN MIND THAT THE LIMITS OF TOLERANCE SHIFT- While society’s moral standards change slowly, if at all, tolerance for breaches of those standards varies from generation to generation. If tolerance increases, moral laws may be left without the strong backing they need to be effective.
3. AS FAR AS POSSIBLE, PRIVACY SHOULD BE RESPECTED- Privacy is an increasingly important value in modern societies. Thus, it should be put in the balance against the making and enforcement of moral legislation.
4. THE LAW IS CONCERNED WITH A MINIMUM AND NOT WITH A MAXIMUM STANDARD OF BEHAVIOUR- The criminal law can and should be an ally in “the war against vice,” but it does not demand that citizens be morally perfect. Its purpose is simply to ensure minimum standards of acceptable behaviour.

Though many people of my generation side with Hart, I side with Devlin. I firmly believe that morality is the mother of law. Without morality, law loses its meaning. Me killing someone without any reason is penalized because its illegal and immoral (not just because its illegal). Law can be functional and beneficial for society only if it remains within the framework of morality.

HART-FULLER DEBATE

The Hart-Fuller debate is an exchange between the American law professor Lon Fuller and his English counterpart HLA Hart, published in the Harvard Law Review in 1958 on morality and law. Hart took the positivist view in arguing that morality and law were separate. Fuller’s reply argued for morality as the source of law’s binding power.

The grudge informer case was discussed in the Hart-Fuller debate published in the Harvard Law Review. A woman reported her husband for making anti-Hitler comments in 1944, leading to him being sentenced to death under Nazi law. The husband was not executed but sent to the front lines. He survived the war and upon his return instituted legal proceedings against his wife. The wife argued that she had not committed a crime because a court had sentenced her husband in accordance with the relevant law of the time. However, a German appellate court found the wife guilty, ruling that the Nazi statute she used to denounce her husband was “contrary to the sound conscience and sense of justice of all decent human beings” and therefore not a valid law.

Hart stated that it is not necessary that laws satisfy certain demands of morality. He did not believe law and morality to be interdependent. Hart did not consider it essential for a legal system to exhibit some sort of conformity with morality.^[8]

Hart believed that there were two different types of rules which comprise the “essence” of law: PRIMARY RULES AND SECONDARY RULES. Primary rules are “duty imposing” rules. They impose certain specific duties upon the citizens of a state to act in a certain manner, or they may be subject to certain legal sanctions. Hart characterizes primary rules as “basic” rules. They tell the citizen what one can and cannot do under the law.^[9]

Secondary rules are ones that let individuals, by doing certain things, present new rules of the principal kind, or adjust them. They give individuals (private people or public bodies) the ability to present or change the main sort of rule. Secondary rules are not obligation enforcing rules. They are what Hart calls power-presenting rules.^[10]

Secondary rules consist of the following three legal aspects-

1. Rules of Recognition: Provides criteria for identifying what counts as a valid law in the system. For instance, the Constitution serves as the ultimate rule of recognition in India.
2. Rules of Change: Authorize people to create, change, and eliminate primary rules. This includes laws that allow for new legislation to be passed.
3. Rules of Adjudication: Grant the power to courts and tribunals to resolve disputes and apply the primary rules to specific cases. For example, a rule that gives the Supreme Court the power to issue writs is a rule of adjudication.

Together, the primary and secondary rules form the heart of the legal system. And, the principle of justice or the rule of recognition is the ultimate rule that binds the legal system as a coherent whole. Hart acknowledged the problem that might occur due to lack of precision in the words used in language of a statute, which he referred to as “the core of law.” Not all cases might exactly fall within the core of the law. Sometimes standard instances of the words may not be sufficient to give proper effect to the law. Prof Hart called these “problems of the penumbra.” It then becomes necessary that the meaning of the words in a statute is decided first while applying legal rules to the facts of a case. Hart believed that problems of the penumbra can easily be solved by way of judicial interpretation. In solving the problems of the penumbra, Hart talked about necessary intersection between law and morals. The criterion which (at times) makes a decision sound in such cases is when a moral judgment is made about what the law ought to be.^[11]

Fuller elects to subdivide the term morality into four different categories, lumping them into what can be described as two different sets of morality, each set having two opposite components. One set contains the “morality of aspiration” and the “morality of duty.”^[12]

Morality of aspiration suggests a desired norm of human conduct that promotes his/her best interest.^[13]

According to Fuller, morality of aspiration is the “morality of the Good Life, of excellence, of the fullest realization of human powers.” Fuller argues that-like the principles of a morality of aspiration, the principles of good writing are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions of acquiring it. It is said that the morality of aspiration implies some conception of the highest good of man, though it fails to tell us what this is.^[14]

Morality of duty describes the standards people follow to ensure smooth functioning of society. It lays down the basic rules without which an ordered society is impossible or without which an ordered society directed towards certain specific goals must fail of its mark.^[15]

Other forms of morality discussed by Fuller are “internal morality of law” and “external morality of law.” According to Fuller, law is a moral enterprise and that to be truly considered law, a system must adhere to an “internal morality” of procedural virtues.

For a principle to be acceptable as a law, he states that it must be measured in terms of the following eight standards^[16]:

1. The principle must be expounded in a manner so that it can be generally applied.
2. The mandates of the law must be communicated to the people to whom they are directed. Fuller calls this “promulgation.”
3. Newly announced principles of law, except on rare occasions, should be applied only in a prospective manner. Retroactive application of changes in prescribed norms, subject to the presence of compelling extenuating circumstances, should be avoided.
4. Standards of action and inaction should be clearly stated. Fuller concedes that the lawmaker cannot specify with absolute clarity exactly what is demanded of everyone in every instance when the law may affect him. He does, however, assert that the duty to clarify the law should be delegated to the enforcement bodies only to the extent that such action is required by the environment in which the law must operate.
5. Arguing that respect for the law calls for consistency, Fuller maintains that the originators of laws should take great pains to see that the body of law is as free as possible from contradictory mandates.
6. Emphasizing that law is tied to the capabilities of human beings, Fuller insists that those who prescribe the norms required of individuals must refrain from imposing impossible standards of action or inaction.
7. While stare decisis, of recent date, has been viewed by some, if not many people, as a barrier on the pathways to needed change, Fuller is of the opinion that abiding by previously announced norms is desirable in and of itself.
8. Fuller writes that if the law is to attain its objectives, it must satisfy the requirement of “congruence.” The law as applied by officials must align with the written law.

Fuller’s “external morality of law” refers to the substantive moral content of a law and whether it aligns with the moral goals of a society. It emphasizes that for a rule to be considered legitimate law, it must not only be procedurally sound but also align with the moral goals of society and promote social co-operation.

CASE LAW:

1. Shaw v Director of Public Prosecutions-Frederick Charles Shaw (defendant) saw an opportunity to profit when legislative changes forced prostitutes off the streets by publishing a magazine known as the ‘Ladies Directory.’ This directory advertised the services of prostitutes, including their contact information, photographs, and descriptions of available sexual services. Shaw’s enterprise earned him money from both the prostitutes who paid for their advertisements and from the sale of the magazine itself. Shaw’s actions were challenged under the premise that such a publication could corrupt public morals. Shaw’s activities intersected with legal statutes aimed at regulating obscenity and prostitution, leading to his conviction on multiple counts, including conspiracy to corrupt public morals, living on the earnings of prostitution, and publishing obscene content. Convicted at trial, Shaw appealed to the Court of Criminal Appeal. The Court of Criminal Appeal affirmed the conviction on all counts. House of Lords upheld Shaw’s conviction.^[17]
2. Lawrence v Texas-John Lawrence (defendant) and Tyron Garner (defendant) found themselves embroiled in a legal battle with the State of Texas (plaintiff) after police officers, responding to a reported disturbance, entered Lawrence’s home and witnessed the two men engaged in a sexual act. The act was in violation of a Texas statute that criminalized deviate sexual intercourse, defined by the state as any contact between genitals of one person and the mouth or anus of another person of the same sex. Lawrence and Garner were arrested and held overnight, subsequently being convicted and fined for violating this statute. Lawrence and Garner challenged their convictions, arguing that the Texas statute was unconstitutional under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Their pleas were initially rejected, but the case’s significance escalated as it moved through the courts, culminating in a petition to the United States Supreme Court for review, which was granted. The Supreme Court declared that the Texas statute was unconstitutional as it violated the Due Process Clause by infringing on the fundamental liberty interests of consenting adults to engage in private intimate conduct without government intrusion.^[18]
3. Regina v Dudley and Stephens-Thomas Dudley (defendant) and Edwin Stephens (defendant), along with two other seamen, were stranded at sea after their yacht was overtaken by a storm. The four men found themselves adrift with minimal provisions. After several days, they ran out of food and water, enduring extreme hunger and dehydration. The weakest among them, a young boy named Richard Parker, was in a dire state due to sickness and lack of sustenance. Dudley and Stephens made the decision to kill Parker and use his body as nourishment for their survival. Following Parker’s death, the remaining crew members were rescued four days later, leading to the legal proceedings against Dudley and Stephens for the murder of Parker. Dudley and Stephens were found guilty of murder.^[19]

CONCLUSION:

Law is related to morality in the setting forth of those virtues that are related to the common good. This does not mean that positive human law should prohibit all vices nor command all virtues: rather it prohibits only the grosser failings of mankind which threaten the very survival of society and commands those virtues which can be ordained by human means to the common good.^[20]

Reference(S):

[1] Wolfenden Report (available on parliament.uk)

[2] ‘It provoked a fierce public debate’: The 1957 homosexuality report that divided the UK- article by Myles Burke (available on bbc.com)

[3] Legislating morality: Scoring the Hart-Devlin Debate after Fifty Years written by Gregory Bassham. The article is published by Ratio Juris, Vol 25. It is available on psi329.cankaya.edu.tr

[4] Ibid

[5] aithor.com

[6] studycorgi.com

[7] Legislating Morality: Scoring the Hart-Devlin Debate after Fifty Years by Gregory Bassham. Published by Ratio Juris, Vol 25. Available on psi329.cankaya.edu.tr

[8] International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212:Volume 4 Issue 2, page no 123-124

[9] William C Starr, Law and Morality in HLA Hart’s Legal Philosophy, Vol 67 Marquette Law Review 673 (1984)

[10] Primary Rule v. Secondary Rule: HLA Hart by S Kiruti Ratchaya (available on libertatem.in)

[11] International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212: Volume 4 Issue 2, page no 124

[12] Tucker, Edwin W. (1965) “The Morality of Law, by Lon L. Fuller,” Indiana Law Journal: Vol.40: Issue 2, Article 5.

[13] Hart and Fuller Debate on Law and Morality by LawTeacher. Available on lawteacher.net

[14] The Morality of Aspiration: A Neglected Dimension of Law and Morality by Wibren van der Burg. Available on repub.eur.nl

[15] HART-FULLER DEBATE AND ITS SIGNIFICANCE IN INDIA-A JURISPRUDENTIAL ANALYSIS by Dr Caesar Roy. Available on dehradunlawreview.com

[16] Tucker, Edwin W. (1965) “The Morality of Law, by Lon L. Fuller,” Indiana Law Journal: Vol.40: Issue 2, Article5.

[17] Shaw v Director of Public Prosecutions, [1961] 2 All E.R. 446, 2 W.L.R 897, 45 Cr.App.R. 113 (available on briefspro.com)

[18] Lawrence v Texas 539 U.S. 558 (2003) [available on briefspro.com]

[19] Regina v Dudley and Stephens 14 Q.B.D. 273 (1884) [available on briefspro.com]

[20] Arthur Scheller Jr., Law and Morality, 36 Marq. L. Rev. 319 (1953)

Available at: https://scholarship.law.marquette.edu/mulr/vol36/iss3/12