positive grounds

  • There are two different theses on the positive grounds for enforcing morality: The extreme one (Stephens) and the moderate on (Devlin). The moderate thesis says that society’s existence depends on a shared morality without which society ceases to exist. The extreme thesis says that, regardless of utility for society, the enforcement of morality is of itself valuable.
  • Hart says that the loosening of moral bonds is not the cause of societal breakdown and Devlin supplies no examples of the fact. Nor do any credible historians maintain this. Devlin also argues that those who do what is generally thought to be immoral are in other ways hostile to society. Again there is no evidence that homosexuals/prostitutes/bigamists are likely to be hostile to society, whatever this means.
  • If a society is to be equated with its basic moral tenets, then a change in these tenets would mean the destruction of society. Hart points out that this is ridiculous as it means that we could not logically say “society’s morality has changed” but rather “one society has disappeared and been replaced”. This would mean that 1950s society was “destroyed” since we no longer share its values.
  • Stephen’s extreme thesis rests on the idea that the law must denounce acts considered by most people to be wrong and to “avenge” feelings of hatred held by the general population, whether rational or not. The criminal law aims to give “form” to public anger (Liberty, Equality and Fraternity, Stephen) Hart questions whether overwhelming moral majorities really do exist and points out that people are capable of having mutually tolerant moral beliefs.
  • Stephen’s view is compatible with that of Lord Denning’s evidence to the Royal Commission on Capital Punishment: that the punishment should fit “public revulsion”. Notary public Solicitors London.
  • Is it a thing of value to simply “denounce” or match popular moral condemnation? Hart notes that this is a similar “justification” to that of human sacrifice! Hart also asks why a denunciation should take the form of punishment? If it is a valuable thing, does it outweigh the human suffering that may result from using the law as a vehicle for popular prejudice? Hart says obviously not.