Utilitarianism, Deontological Model Theory

Extract 1 : INTRODUCTION TO LAW AND MORALITY
Extract 2 : CLASSICAL UTILITARIANISM AND KANTIAN DEONTOLOGY
Extract 3 : CONCLUSION

If morality matters for law, in what way does it matter and does it make a difference which moral theory is adhered to? Illustrate your answer with reference to at least 2 moral theories (the theories are Utilitarianism and Deontological moral theory)

Table Of Contents

INTRODUCTION TO LAW AND MORALITY
Obligations
The Law And Morality In A Broad Sense
The Legal Enforcement Of Morality
Paternalism
BIBLIOGRAPHY

If morality matters for law, in what way does it matter and does it make a difference which moral theory is adhered to? Illustrate your answer with reference to at least 2 moral theories (the theories are Utilitarianism and Deontological moral theory)

INTRODUCTION TO LAW AND MORALITY

Obligations
Is there a moral obligation to obey the law? That question does, however, permit us to notice explicitly the fact that there are a variety of obligations. We may be obliged by the rules of a game or a professional association; we may be obliged by the law and the state's enforcement machinery; we may be obliged morally. One of the questions in applied ethics concerns the extent to which the law should be lending its support to morality. This is an issue in which Mackie's conception of morality in the narrow sense, contrasted with a broader sense, can play a useful role. We can see this from his own claim that great parts of what both the criminal and the civil law enforce, at all times and in all states, are also requirements of morality [in the narrow sense] - not killing or assaulting other people, honesty, respect for property and other rights, the keeping of agreements, and contributing in various ways to a community's organised joint purposes 1. In these areas we have, and need for a stable society, first the mechanisms of morality (principles, rules, feelings and dispositions), second "the formulation and authoritative statement of laws", and third the routine enforcement of those laws; and we need these to be in reasonable harmony with each other.

The law and morality in the broad sense
It is when we move from this comparatively central core to issues that belong only to morality in the broader sense that serious problems arise. We can postulate contexts in which this extension is itself unproblematic: a society in which there is consensus on broader issues and in which there is virtually no hypocrisy. What we do find, and the context in which we certainly are living, is rather different in these two ways that Mackie picks out: there are different, incompatible preferred ways of life, and there is often a discrepancy between the morality to which people pay lip service and that which they seriously prescribe to themselves .2

On the first issue, of incompatible preferred ways of life, it might be pertinent, and relevant to the regional scene, to make a distinction Mackie overlooks between the conditions of a benign "plural" society and those of a society where groups not only adopt incompatible codes of conduct but also think each other seriously deficient because of this. (This may well be the condition of an explosive plural society - many cultures have traditionally been hostile to outsiders. It is also noteworthy that in many cases the moral hostility is overwhelmingly one-way: many people detest a homosexual way of life, but homosexuals need not condemn heterosexuality for others; prostitutes do not need to think that sex within marriage is wicked). One solution, typical of benign plural societies, is to have a multiplicity of legal systems corresponding to the various segments within it. So Muslims follow Muslim conventions regarding marriage, inheritance, etc., and the legal system enforces these in that segment of the community; Hindus likewise follow their conventions; and so on. One may need ways of dealing with problems created at the interface between communities, but there is nothing in principle to prevent one finding them.

The more awkward case is where the ways of life are not only incompatible but mutually (or in one direction) condemnatory. These are typically ways of life within what in some respects sees itself (or is seen by prominent segments within it) as one community (while some of his audience might have no serious objection to Muslims [assumed to belong to a different racial group] practising polygamy they might feel very differently about some of their own embracing Mormonism and doing likewise). What we find is that the morality in the broad sense (preached and/or practised) of some among the dominant segments of a society has very often infused the law. With a growing realisation of the contrast underlying Mackie's narrow/broad conceptions of morality, there is a tendency for the law to be liberalised in the direction of allowing people with divergent values to live and let live, rather than for some to be condemned and legally sanctioned.

The legal enforcement of morality
This tendency, and the arguments surrounding it, can be clearly seen in the 1957 Wolfenden Report in the UK (The Report of the Committee on Homosexual Offences and Prostitution), and the debate on its approach between Lord Devlin and Professor Hart. Devlin quotes the Report's account of the function of the criminal law: to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence 3. It sees the importance of individual freedom of choice and action in matters of private morality as far outweighing any wish to equate crime with moral wickedness, so private morality should not be the law's business.

Devlin argues that a society requires a public morality: what makes a society of any sort is community of ideas, not only of political ideas but also ideas about the way its members should behave and govern their lives 4 One of his main examples is marriage, where he says a society has to choose monogamy or polygamy and cannot have both: the institution of marriage would be gravely threatened if individual judgements were permitted about the morality of adultery; on those points there must be public morality5 (though, that he admits that adultery is not a crime and later agrees that it ought not to become one). A consequence, he says, is that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions .6

Devlin goes on to accuse the Report of inconsistency in its acceptance on the one hand that certain things are wrong and yet on the other that the law should refrain from direct action, except in cases of corrupting the young or exploitation. The Report itself admits that typically they no more exploit prostitutes than any other agent exploits his clients: if the exploitation of human weakness is considered to create a special circumstance there is virtually no field of morality which can be defined in such a way as to exclude the law 7. Devlin gives other instances of the law, and not merely Wolfenden's recommendations, becoming distorted by trying to serve purposes for which it is not intended - the severe punishment then given to abortionists because illegal abortions were dangerous, and dangerous because they were illegal .8

Hart responded to Devlin by accusing him of confusing the true claim that a society has some moral beliefs in common with the false one that a society is strictly identical with its entire morality at a point of time, so that any change in morality destroys it. Devlin reasonably replies that he did not suggest that there could be no change, merely that some matters went deep enough to constitute the lines of the tolerable for a group of people. He even admitted that the limits of the tolerable itself do change9 . The Mackie contrast may indicate a way to distinguish the relative importance of different elements in a society's moral cosmos; what one wants to say to Devlin is that the degree of outrage felt for homosexuality is disproportionate to its role in a social formation - it is evident we can live and let live here. Again, he overemphasises the importance of consensus on one particular form of marriage in a society: plural societies manage with several, and several societies are arguably moving towards what one might call the disestablishment of marriage altogether. The argument cannot be simply a group of people can survive and flourish with a certain number of them doing X, so there need be no law against X since that is true if X is murder, rape, theft, etc. It is, rather, once everyone's fundamental rights to progressively choose how to live have been assured by laws corresponding to the core of morality, some can pursue X, others Y, and there need be no law restricting their freedoms here .10

Paternalism
Part of Devlin's case for the law to enforce positive morality was an appeal to certain features of contemporary English law that he said could only be explained on that basis. Hart responded to this by suggesting that much of what we find can be explained, not by an attempt to enforce morality, but simply by paternalism: the attempt to protect people from themselves. So, while Devlin claimed that the fact that consent of the victim is not usually allowed as an excuse against criminal prosecution showed that the law was attempting to uphold certain standards of behaviour, Hart suggests that the law here might merely be trying to protect people from themselves. Hart makes the point that the law that makes selling certain drugs without a prescription a criminal offence is clearly not aimed at the fault of the seller so much as at protecting possible buyers 11. He suggests that Mill's opposition to these developments stems from an excessively narrow conception of what a typical member of the public is like: Mill endows him with too much of the psychology of a middle-aged man whose desires are relatively fixed, nor liable to be artificially stimulated by external influences; who knows what he wants and what gives him satisfaction or happiness; and who pursues these things when he can .12

Another example our two authors briefly touch on concerns cruelty to animals. Devlin suggests we are legislating against the cruelty of torturers13 and Hart states we are concerned with the suffering of the animals. Hart has a third approach to some cases: the law is not to be seen as enforcing a particular morality but rather as protecting the public from offences to public decency 14. Conjugal sex is not illegal, but in a public place it is. So, he suggests, we should see laws against bigamy as addressed to the feelings of outrage of those who cleave to traditional monogamy15 . It seems that these alternative accounts may do something to undermine Devlin's case, but a point remains that Hart cannot escape. Harm and offence are seriously indeterminate notions. On one side there are indubitable cases - one could package cyanide in a colourful wrapper and sell it to children as a sweet; it would do undeniable harm to any child who ate it. We could probably agree upon equally straightforward cases of outrage and offence to a mutually supported public decency. However, as Hart is prepared to agree as far as offence goes at least, it soon becomes a nice question whether we are faced with "genuine" harm or offence, of a kind that the law should be taking into account 16. As we reach this area, the grounds for thinking something harmful or offensive shift away from straightforward factual connections with pain, suffering or death towards something more purely evaluative. So if we have laws in these areas, they are enforcing someone's contentious view of what a person's good consists in; they may not have to be viewed as punishing moral wickedness, but in as much as they penalise certain forms of behaviour it is easy to think that they do so, particularly if one does not agree about the harm in question.

In his later comment on Hart, Devlin makes much the same objection to Hart's invocation of paternalism. He contrasts "physical" or bodily harm and "moral" harm, and asks whether Hart is restricting himself to the former. He suggests that this cannot be the correct interpretation of the paternalism, if such it be, involved in, say, forbidding euthanasia or not letting consent nullify assault for a masochist, and goes on to make the point that we cannot easily tell when the physical ends and the moral begins 17. It is not surprising then that many people have come to think that consuming or possessing various substances is wicked because they have been banned, possibly with an eye originally to paternalistic avoidance of self-harm, although the actual harm may be difficult to discern. Hart, according to Devlin, is in danger of seeking greater rationality in the actual law at any one time than the conflicting pressures of broadly liberal politics, paternalistic concerns, entrenched interest groups, entrenched but pretty arbitrary ways of thinking, and temporary moral panics permit. This can be amply documented from the incoherence of present legislation in many jurisdictions on recreational drugs vis-à-vis tobacco and alcohol or of local legislation on gambling .18

  1. J. L. Mackie (1980: 234)[^ Return]
  2. J. L. Mackie (1980: 234)[^ Return]
  3. Lord Devlin (1959: 2)
    See also, 1957 Wolfenden Report: The Report of the Committee on Homosexual Offences and Prostitution[^ Return]
  4. Lord Devlin (1959: 9)[^ Return]
  5. Lord Devlin (1959: 10)[^ Return]
  6. Lord Devlin (1959: 13)[^ Return]
  7. Lord Devlin (1959: 12)[^ Return]
  8. Lord Devlin (1959: 24)[^ Return]
  9. H. L. A. Hart (1962: 18) [^ Return]
  10. H. L. A. Hart (1962: 18)[^ Return]
  11. H. L. A. Hart (1962: 32)[^ Return]
  12. H. L. A. Hart (1962: 33)[^ Return]
  13. Lord Devlin (1959: 17)[^ Return]
  14. H. L. A. Hart (1962: 34)[^ Return]
  15. H. L. A. Hart (1962: 45)[^ Return]
  16. H. L. A. Hart (1962: 47)[^ Return]
  17. Lord Devlin (1959) The Enforcement Of Morals, chapter 7[^ Return]
  18. Ed Brandon,last revised November 3 2001 [http://www.uwichill.edu.bb/bnccde/e&ae.ph19b_lawandmorality.htm][^ Return]

BIBLIOGRAPHY

1 Abelson, R. and Friquegnon, M. (eds.) 'Ethics for Modern Life', St. Martin's Press, 5th ed. 1995

2 Brandon, Ed 'Law And Morality' November 3rd 2003:
[http://www.uwichill.edu.bb/bnccde/_e&ae/ph19b_lawandmorality.htm] 2003

3 Devlin, Lord P. 'The Enforcement Of Morals', Oxford, Oxford University Press 1959

4 Hart, H. L. A. 'Law, Liberty And Morality', Oxford, Oxford University Press 1962

5 Hooker, B. W. 'Some Theses About The Assessment Of Moral Theories':
[www.rdg.ac.uk/AcaDepts/Id/Philos/How_To_Assess_Moral_Theories.htm-30k-] 2003

6 Kant, I. 'Groundwork of the Metaphysic of Morals', trans. Paton, Harper & Row, 1964

7 Mackie, J. L. 'Humes Moral Theory', London: Routledge 1980

8 Rachels, J. 'The Elements of Moral Philosophy', McGraw Hill, 2nd ed. 1993

9 Shavell, S. 'Concluding morality and law':
[www.law.umich.edu/CentersAndPrograms/olin/papers/Fall%202001/shavell.PDF] 2001

Extract 1 : INTRODUCTION TO LAW AND MORALITY
Extract 2 : CLASSICAL UTILITARIANISM AND KANTIAN DEONTOLOGY
Extract 3 : CONCLUSION

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