Taking Law Seriously: Starting Points of the Hart/Devlin Debate*

Abstract

The famous mid-20th century debate between Patrick Devlin and Herbert Hart about the relationship between law and morality addressed the limits of the criminal law in the context of a proposal by the Wolfenden Committee to decriminalize male homosexual activity in private. The original exchanges and subsequent contributions to the debate have been significantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual offences in particular; a preoccupation with the so-called “harm principle,” a sharp delineation of the realms of law and morality, and a static conception of the relationship between them. This article explores the limitations imposed by these various starting-points and argues for a holistic and symbiotic understanding of the relationship between law and morality.