THE INTERSECTION OF LAW AND MORALS
AbstractIn 1957 the Wolfenden Commission delivered its Report recommending that homosexual acts between consenting adults no longer be treated as criminal in England. Sir Patrick Devlin, a judge of Queen’s Bench became known for his public criticism of that Report; his principal objection was to following John Stuart Mill’s belief in a sphere of private morality. Rather, he said, a commonly recognized morality was necessary to a society’s existence and argued that the law was there to protect that morality. The author feels that the ensuing criticism of Devlin’s position obscured his real point, and goes on to explore it. He claims that Devlin’s mistake was not in claiming that it is never justifiable to punish unless immorality is present, for this is true, but in claiming that considering punishment is always justifiable whenever immorality is present. The article explores the perceived deficiency in how Devlin ties together morals and the law, and outlines three ways other than decriminalizing homosexuality that the intersection between the two is threatened: 1) the regulation of perfectly moral activities, 2) the selective regulation which leads to ignoring certain immoral acts and 3) the alignment of law with a morality not that of the society at large.
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