Public condemnation

Public condemnation is not sufficient b/c it’s incompatible w/individual liberty

We need more → but what?

Shouldn’t dismiss Devlin as outdated b/c he raises 2 important points:

society has a right to protect itself → 3 stages

Devlin: some morals are for one’s own guidance (e.g. religion) and others which it imposes on all (e.g. monogamy) – any soc can’t survive w/out some of the latter, so that it has a right to preserve its own existence. To that end, it may use law to safeguard its existence.

Dworkin: not every immorality should be enforced – we need restraint; i.e. toleration of maximum individual freedom in so far as it’s consistent w/integrity of society. But when public feeling reaches intolerance, indignation & disgust, the law should step in. This isn’t simply majority’s moral judgment – survival of society must be at stake.

Hart: this rests on confused notion of society – absurd to think that which it views as disgusting threatens it. We will explore Notary Public London in more depth in the next lesson.

Public outrage is presented as a threshold criterion which places the activity in the category which law isn’t forbidden to regulate

in the course of transition to 3rd stage, this threshold criterion becomes an affirmative reason for action – law may proceed w/out more

so Devlin’s argument becomes one of mere public indignation requiring enforcement – a point he was trying to deny!

  1. society’s right to follow its own lights
  1. Devlin: legislators decide whether institutions threatened are worth supporting at the cost of human freedom. In order to decide which cases of immorality should be criminalised, he can’t turn to science or religion but can look to consensus in society
  • Dworkin: Devlin misunderstood what it means to say law should be drawn from public morality. In order to convince someone that yours is a moral position, you:
    1. must produce reasons for it – e.g. Bible forbids it, it makes one unfit for parenthood etc.
  • But some reasons are prohibited

  1. Prejudices
  2. Emotional reaction
  3. Basing it on proposition of fact
  4. Citing believes of others
  1. reason produced must presuppose a general theory behind it – when you invoke the Bible, you presuppose it gives morally binding reasons. So if you condemn all homosexuals on biblical authority but not fornicators, and you can’t justify the distinction, the argument is false.

So Devlin argues that when legislator decides a moral issue they must follow moral consensus based on democratic principle. This would be plausible if he meant moral consensus of society in terms of moral position (as above) but instead he admitted moral consensus may be a matter of feeling (“if the reasonable man believes it sincerely”). Even if it’s true that most men see homosexuality as abominable, this may be based on prejudice. These sort of positions need to be distinguished from moral convictions in thre sense outlined above on which law may base its interventions. Legislator shouldn’t hold hearings on the Clapham omnibus but should instead sift through reasons and exclude those which are prejudiced or consist of emotional reaction etc. When he’s finished, he may find moral consensus, but there’s unlikely to be one in case of homosexuality.