Background Facts:
Wolfenden Committee had to
prepare a report on issue of legalising homosexuality and prostitution. The Report came in favour of legalisation as
it stated that the law need not concern itself with immorality. HLA Hart, Lord
Patrick and Lord Devlin took part in the debate.
The primary reason for decriminalisation of homosexuality was on basis
of:
·
Freedom of choice
·
Privacy of morality
Devlin’s position
·
Law without morality destroys freedom of
conscience and is the paved road to tyranny.
·
He talked about society’s ‘moral fabric’ which
the society holds together and if criminal law does not respect and reinforce society’s
morality it will destroy the ‘moral fabric’ leading to disintegration of
society.
·
Any category of behaviour that is capable of
posing a threat to social cohesion can be governed by morals laws. They are
justified as they protect society against the disintegrating effects of actions
that undermine the morality of a society.
·
There is no limit of reach of la and thereby
immorality could also be governed by law. (Immorality is what every
right-minded person considered immoral)
·
Devlin suggested that common morality could be
determined from asking ‘what is acceptable to the ordinary man, the man in the
jury box, who might also be called the reasonable man or the right minded man’.
·
Devlin thus made following recommendations:-
o
Privacy should be respected.
o
Law should only intervene when society won't
tolerate certain behaviour.
o
Law should be a minimum standard not a maximum
standard.
Hart’s position
·
Hart‘s position was based on Mills harm
principle. (No act should be interfered with it unless it affects the rights of
another person)
·
He warned against dangers of ‘populism’ and was
against the view of imposing majoritarian perception of morality over the
remaining members of the society.
·
Hart also stated that a mere change in moral
views does not lead to disintegration of society.
·
Hart’s approach is much more individualistic to
that of Devlin.
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