Review Of Hart And Devlin Controversy

In the1960s, the liberal economic system was restricted, the social utilitarian was in vogue and the individual liberalism idea was assaulted, Hart and Devlin on homosexuality, prostitution and other acts related to sexual ethics should be wrong as the crime of criminal punishment engaged in a fierce debate.The cause of controversy from the United Kingdom published in1957,"Report of the Committee on Homosexual Offences and Prostitution", the report recommends the removal of criminal sanctions against homosexual acts. In order to argue against the "Wolfenden Report", the conservative Devlin advocate:to be compulsory by law to punish homosexuality, prostitution and other acts in order to protect the existence of shared moral of society. Devlin’s view was based on the theory of crash in the society, law enforcement theory, moral conservatism and "moderate" theory. Hart criticized Devlin’s view that the enforcement of morals is wrong. Hart’s theory was based on the liberalism and the philosophy of positivism, uphold Mill’s "harm principle" and the analytical positivist jurisprudence.Hart and Devlin’s debate can be divided into three stages, and focused on three issues. Firstly, what is the role of law in the society? Devlin stood in the position of the "social standard". He stressed that law should protect the existence of shared moral. But Hart did not agree with Devlin. He pointed out that the role of the morality is not so important as Devlin said. Morality is not always remain unchanged. It should have a line between public morality and private morality. Hart opposed the law to unduly interfere with the private moral life. Secondly, as to the problem of democracy and freedom. Devlin believed that under normal circumstances, most people were always in favor of what be recognized. Hart pointed out that Devlin’s democracy was inapposite. The generally recognized democracy plunge into the danger of "majority tyranny". Thirdly, as to the enforcement of morals. In this round of the debate, Devlin described that it was right to enforce the law to moral issues. Hart justified the enforcement of morals was inappropriate. He opposed to enforce those privacy and harmless moral acts by law.Hart and Devlin’s debate deepened the analysis of the positivist legal thought, not only promoted the revival of the analytical positivist jurisprudence, but also made the analytical Jurisprudence appear a key breakthrough, which broken the tradition of the positivist jurisprudence completely exclude the moral factors. Secondly, the debate promoted the innovation of the methodology of jurisprudence. It broken the presume of legal positivism-the separation of fact and value, it created the position of "value neutral". Thirdly, the debate defined the legal and moral issues. We should consider the moral factors in the legislative, and pay attention to their limits and boundaries.In the final analysis, Hart and Devlin’s debate, in essence, is a big discussion about individual freedom and community autonomy. Hart supported the individual freedom. Devlin approved the community autonomy. He stressed that the value of the moral community was higher than the value of the moral individual.