Law, Liberty, and Morality by H.L.A. HartHart defends JS Mills proposal that laws regulating self-regarding vices ought to be abolished, pushing back against a fairly unconvincing argument by Lord Devlin and a much stronger one by James Fitzjames Stephen. Stephen claims that morality is largely upheld by cultural norms, and that these norms need the support of law to be sustained to any productive purpose.
Harts response to Stephen rested on an empirical claim:
in any full investigation of the part played by legal prohibition in sustaining the conviction that conduct is morally wrong, we should have to distinguish between various types of immorality. Some, like fornication, though they may be quite sincerely condemned morally, represent temptations to a majority of men; others, such as incest or homosexuality, are practices for which most men may feel aversion and disgust. In relation to the latter it would be very surprising if legal prohibition were a significant factor in preserving the general sense that the practice is immoral.
In the fifty years since legal prohibitions have been removed, the general sense of the morality of homosexuality has clearly changed radically. In the 1960s, allies of racial segregation opposed federal legislation under the slogan: You cant legislate morality. In both cases, it is clear that legal change has done much to reorient society -- not least by reshaping its moral opinions and customs.
As a result, Harts reasoning now seems more than a little dubious -- even if public policy has, on some issues, moved closer to his preferences.
“Law, Liberty and Morality”: Fifty Years On
Both human misery and restrictions on human freedom are burdens, so enforcement of good by any means, including punishment, requires justification. That the actual institutions of society are open to Law, Liberty, and Morality. Hart , Herbert Lionel Adolphus Hart. This incisive book deals with the use of the criminal law to enforce morality, in particular sexual morality, a subject of particular interest and importance since the publication of the Wolfenden Report in
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