Legal Enforcement Of Morality Research Articles

The Legal Enforcement of Morality

In this encyclopedia entry I deal briefly with whether the immorality of conduct is a necessary condition for its criminal prohibition, and then at greater length with the more controversial question of whether conduct's immorality is a sufficient condition for its criminal prohibition. On the latter question, I present and then critique the "liberal" views of J.S. Mill, Joel Feinberg, H.L.A. Hart, and Jonathan Schonsheck, the "liberal perfectionist" views of Michael Moore and Joseph Raz, and the conservative views of Patrick Devlin. I also discuss the relation between the criminal proscription of offensive conduct and the criminal proscription of "harmless immoralities".

Islam and the legal enforcement of morality

Over 60 years ago, British high court judge Patrick Devlin and legal philosopher H.L.A. Hart fought out a famous debate over the legal enforcement of morality, which was generated by the question of whether homosexuality should be legalized or not. Jurists agree that this debate was won by Hart, also evidenced in the fact that the state has since been retreating from its previous role of moral watchdog. I argue in this article that the two most conflicted and essentially unresolved issues in the integration of Islam, the regulation of the female body and of free speech, have reopened this debate anew, pushing the liberal state toward the legal regulation of morality, thus potentially putting at risk its liberalness. I use the Hart-Devlin debate as a template for comparing and contrasting the Muslim quest for restricting free speech with the host-society quest for restricting the Islamic veil. Accordingly, there is a double threat to liberalism, which this paper brings into view in tandem, one originating from Islam and another from a hypertrophied defense of liberalism.

The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court's Opinion in United States v. Windsor, John Stuart Mill's Essay on Liberty (1859), and H. L. A. Hart's Modern Harm Principle

In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central point. The argument in The Collapse of the Harm Principle can be slightly restated and, I believe, continues to shed light on contemporary debates over the legal regulation of morality: Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. I then demonstrate the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v. Windsor, which, I argue, reflects perfectly the collapse of the harm principle.

Morality, Law and the Fair Distribution of Freedom

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality.

The Plasticity of Harm in the Service of Punishment Goals: Legal Implications of Outcome-Driven Reasoning

The “harm principle,” which suggests that the State should criminalize conduct only if doing so is necessary to prevent harm to others, has long been at the center of debates about the legal enforcement of morality through the law. This Essay presents a series of original experiments that investigate the psychological “plasticity” of harm in the context of criminalization — i.e., the extent to which people may recruit harm to achieve desired outcomes within the terms of a given legal constraint. In the first study, we identified various scenarios that induced defiance of the harm principle, such that the participants wanted to criminalize the conduct even if they did not think that it caused harm to others. We then used these scenarios in a second study to investigate how people would respond when they were told that the law requires a finding of harm in order to impose a criminal penalty. As predicted, the respondents who were presented with the necessity-of-harm constraint continued to criminalize at the same rate, but they imputed harm to the conduct where harm was not previously reported. The third study demonstrated the directionality and universality of the harm plasticity effect by showing that a legally extrinsic ideological factor exacerbated the recruiting of harm among people on both sides of a controversial issue (abortion), without their recognition. The final study provided evidence for the nonintentional nature of this effect and pointed toward a pathway to potential remedies. These experiments reveal motivated, outcome-driven perceptions of harm that are at odds with the objective, perception-driven outcomes toward which the legal system strives. We discuss the implications of our findings for the criminal regulation of morality, constitutional law, and theories of punishment and moral reasoning. Furthermore, we consider the application of our results to legal decision making by lay people and professional adjudicators in the context of two high-profile Ninth Circuit cases. We conclude with a discussion of how to potentially reduce motivated cognition in legal judgments.

Retributivism and Legal Moralism

AbstractThis article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. Though weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways.

The Plasticity of Harm in the Service of Criminalization Goals

The “harm principle,” which suggests that the State should criminalize conduct only if doing so is necessary to prevent harm to others, has long been at the center of debates about the legal enforcement of morality through the law. This Essay presents a series of original experiments that investigate the psychological “plasticity” of harm in the context of criminalization—i.e., the extent to which people may recruit harm to achieve desired outcomes within the terms of a given legal constraint. In the first study, we identified various scenarios that induced defiance of the harm principle, such that the participants wanted to criminalize the conduct even if they did not think that it caused harm to others. We then used these scenarios in a second study to investigate how people would respond when they were told that the law requires a finding of harm in order to impose a criminal penalty. As predicted, the respondents who were presented with the necessity-of-harm constraint continued to criminalize at the same rate, but they imputed harm to the conduct where harm was not previously reported. The third study demonstrated the directionality and universality of the harm plasticity effect by showing that a legally extrinsic ideological factor exacerbated the recruiting of harm among people on both sides of a

Hart on legal enforcement of morality

Author analyzes H.L.A Hart's discussion about the legal enforcement of morality. The legal enforcement of morality is one among many various aspects of the complex relation between law and morality. Hart's standpoint about the legal enforcement of morality reflects his general concept about relations between law and morality. At the same time, his concept of legal enforcement of morality represents stark theoretical opposition to moral and legal philosophy of Lord Patrick Devlin. Hart's generad concept of relation between law and morality could interpreted by polarity thesis. Polarity thesis claims that law and morality are distinct normative systems, but between there are many rationally identifiable and relevant overlapping. Theoretically the most significant overlap between law and morality is presented in the theory of minimal natural law theory. This theory exemplifies empirical version of classical natural law theory. The minimal natural law theory relevantly impacts on formation of Hart's attitude concerning the phenomenon of legal enforcement of morality. The traces of it's impact are presented in Hart's modification of Mill's liberty principle and his claim about necessity of extension of largest possible extent of equal personal freedom.

10.2307/3504568

10.2307/3504568

The Collapse of the Harm Principle

In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Chicago's temperance movement reflects a fascinating development in the legal enforcement of morality. Instead of arguing about morals, the proponents of enforcement are talking about individual and social harms in contexts where, thirty years ago, the harm principle would have precluded regulation or prohibition. The same argument about harm has been used to justify the regulation of sexual practices among military personnel infected with the HIV virus. The collapse of the harm principle has significantly altered the map of liberal legal and political theory in the debate over the legal enforcement of morality. Liberal theory prevails in the sense that the harm principle is hegemonic—if only in theory. The original progressive political valence of the harm principle, as well as the contemporary conservative tilt, are the products of particular historical and political contexts.

Legal Enforcement of Morality

Legal Enforcement of Morality

The Legal Enforcement of Morality. Thomas C. Grey

<i>The Legal Enforcement of Morality</i>. Thomas C. Grey

Law, Morality and Religion in a Christian Society

The publication in 1957 of the Wolfenden Report occasioned a celebrated controversy in which profound theoretical issues concerning the relation between law and morality, and the legal enforcement of morality were discussed. The principal disputants were Lord Justice Devlin (Sir Patrick Devlin as he then was) and Professor H. L. A. Hart. It is by now well known that the main recommendation of the Wolfenden Report was the reform of the criminal law so that homosexual behaviour in private between consenting male adults should no longer be a criminal offence. As homosexual behaviour in Christendom was at the outset punishable in the ecclesiastical courts, and subsequently, with the demise of the ecclesiastical courts, in the secular courts, the Wolfenden recommendation on homosexuality marked a major departure from the prevailing state of affairs in which the precepts of Christian morality, especially relating to sexual morals, were at first enforced by the ecclesiastical courts, and then by the secular courts.