Jurisprudence.

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JURISPRUDENCE
Devlin, Mill and Hart Regarding Moral and Law
Contents
1.0 Devlin
2.0 Mill
3.0 Hart
1.0 Devlin (Sir Patrick Devlin)
Questions Answers
1. Can society pass judgment on all moral
matters, or can some matters be
properly reserved into the private
sphere?
1. The structure of every society is made
up of politics and morals.
2. If society is entitled to pass judgment, is
it also entitled to use the law as a
means of enforcement?
2. He likens immoral conduct to treason,
on the basis that both threaten the
continued existence of society.
3. If the second question receives an
affirmative answer, is society entitled to
use the law in all cases, or only in
some; and if only in some, how is the
dividing line to be drawn?
3. The problem is to balance public and
private interests. No absolute rule can
be formulated as to how this should be
done, but the general principle is that
‘there must be toleration of the
maximum individual freedom that is
consistent with integrity of society.’
Devlin accepts that the limits of
tolerance will shift from time to time, but
insists that ‘tolerance’ is not the same
thing as ‘approval’, the point apparently
being that it is only appropriate to speak
of tolerating things which are
considered to be wrong. The point at
which tolerance ceases is reached

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where there is ‘a deliberate judgment
that the practice is injurious to society.’
 Individuals who do not accept the rightness of the common morality must nevertheless
accept the need for that morality.
 The legitimacy of the law’s intervention in matters of individual morality depends on the
‘intolerance, indignation and disgust’ of ordinary people.
 Devlin is confident that ordinary people are capable of differentiating between
disapproving of something and being disgusted by it.
2.0 Mill (John Stuart Mill)
Mill has a classic liberal view of the relationship between law and morality. He formulates the
harm condition through the following statement:
“The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear
because it will be better for him to do so, because it will make him happier, because in the
opinion of others, to do so would be wise or even right.”
Mill precludes the law from intervening even on paternalistic basis.
3.0 Hart (H.L.A Hart)
Empirical evidence of what our society does about the legal regulation of individual morality
can provide no answer to the question of what ought to be done.
Four Key Points
1) He distinguishes between harm being suffered by one person in the form of being
offended by witnessing other people’s conduct, and harm suffered by one person in the
form of being offended by merely knowing what other people do.
a) Public decency is within the law’s proper scope. Therefore, the law may legitimately
prohibit the conduct which offends others. The latter, being purely private, is outwith
the law’s proper scope.
2) Devlin’s arguments that maintaining moral bonds is essential to preserving society itself.
Hart criticizes how Devlin assumes those who deviate from any part are likely bound to
deviate from the whole; there is no evidence to support that.

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3) Any society’s morality will change from time to time and it is absurd to say as Devlin
does, that this means one society has ceased to exist and another one has taken its
place.
a) Changing morality may more accurately be compared not with ‘the violent overthrow
of government but to a peaceful constitutional change in its form, consistent not only
with the preservation of a society but with its advance.’
4) Hart accepts that paternalism has a role in legal regulation of morality, provided it is
restricted to activities which cause physical and not merely moral harm to individuals.
a) Hart insists that his limited concession to paternalism does not extend to accepting
that the law may legitimately enforce individual morality for its own sake.