Wk 9 Qn 1 SMU Singapore Managemnt University

J E A N N A , G E N E V I E V E , K E H U A , Z A H R A H , A S Y R A F

THE HART V DEVLIN DEBATE & THE 2007 PARLIAMENTARY DEBATES ON

S377A

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QUESTION

What is the role that societal morality plays in Harts and Devlins theories?

Critically compare the way societal morality was considered in Singapore in the review of 377A Penal Code in 2007, and the role it plays in Harts and Devlins theories.

Do you agree with the roles given to societal morality?

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ROADMAP

Role of societal morality in: Devlin Hart

Comparison of the roles: 2007 Parliamentary Debates VS Devlin 2007 Parliamentary Debates VS Hart

Conclusion

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WHAT IS SOCIETAL MORALITY?

No fixed definition

Can also mean: Shared morality Public morality Positive morality

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WHAT IS DEVLINS THEORY?

The law would regulate and sanction private acts in order to preserve the moral fabric of society (1) Every society has a moral structure a community of

ideas, which contain fundamental agreements about good and evil

(2) If the agreement goes, society will disintegrate To safeguard societys existence, society may use the law to preserve morality. Balance danger to society VS Extent of restriction to individual Unless limits of tolerance crossed (indicator: unmanufactured

disgust)

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DEVLINS THEORY - ROLE OF SOCIETAL MORALITY

Constitutes a basis upon which private conduct could be regulated and sanctioned by means of the law

Fundamental

agreement

about good and evil

Moral structure

Community of ideas 6


Fundamental

agreement

about good and evil

Moral structure

Community of ideas

Enforcement

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(1) CRITICISMS

Circular argument? Societal morality forms the basis of Devlins theory Devlin claims that without the intervention of law to regulate

certain conduct, the moral ecology would be destroyed and society would disintegrate

Two separate concepts Societal morality cannot be equated to moral ecology and

societal disintegration Moral ecology: More of a sentiment shared amongst society

members AKA Moral climate

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WHEN TO ENFORCE SOCIETAL MORALITY?

Unanimity of 12 reasonable men/women Not to be confused with the rational man Not expected to reason about anything Judgment may largely be a matter of feeling Viewpoint of man in the street/Clapham omnibus

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(2) CRITICISMS

Test itself is self-conflicting? Aims to be an objective test But takes into account that the reasonable man may make

his judgment based on emotions

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(2) CRITICISMS

Goes back to his theory of social cohesion Cannot get the individual assent of citizens Because society is built on a community of ideas Reasonable man would be an accurate reflection of it

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What is the societal

morality?

Does it exceed the limits of tolerance?

Yes Enforce through law

No No enforcement

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HARTS THEORY 13

HARTS THEORY

Two qualifications to the harm principle:

Paternalism Public indecency

Mills harm principle

Modified harm principle Harm to others Tangible Intangible?

Harm to oneself Emotional harm (offence to feelings)

Legal coercion justifiable to prevent harm.

HARTS THEORY ROLE OF SOCIETAL MORALITY

Two possible views:

Enforced through the modified harm principle

Irrelevant


Societal morality plays no role in Harts theory.

Irrelevant

1. Enforcement of societal morality per se is incompatible with the harm principle.

the enforcement of morality is regarded as a thing of value, even if immoral acts harm no one directly, or indirectly by weakening the moral cement of society.

Hart calls this the extreme thesis. Hart in Law, Liberty and Morality



Irrelevant

2. Devlins disintegration thesis does not justify enforcement of law.

No empirical evidence that deviance from societal morality would cause disintegration.

Destruction in a trivial sense Based on the unacceptable proposition that a society is identical with its morality, such that a change in its morality is tantamount to the destruction of a society.



Prevention of harm is the sole basis for enforcement of law.

Irrelevant

1. Enforcement of societal morality per se is incompatible with the harm principle.

2. Devlins disintegration thesis does not justify enforcement of law.


The effect of enforcing the law based on the modified harm principle is that societal morality is enforced. To determine what constitutes public indecency,

one may need to refer to societal morality.



Eg. Nudity in public Public nudity is offensive according to Singapores societal

morality. Hence, it is illegal.

However, nudity is not offensive according to other societal moralities. Thus, in the Netherlands, public nudity is legal in specified areas.


We have other hard-to-police laws which embody communal standards of decency, such as laws against nudity visible to the public eye, even if you are at home. - Prof Thio Li-Ann, Second Reading of the Penal Code (Amendment) Bill, 2007.

2ND PART OF THE QUESTION

Critically compare the way societal morality was considered in Singapore in the review of 377A Penal Code in 2007, and the role it plays in Harts and Devlins theories.

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SG PARLIAMENT VS. DEVLIN

Q) Societal morality as a justification in the enforcement of moral laws. To what extent has the SG parliament adopt this? SG Parliament Comport with Devlin?

Majority Argument?

Ho Peng Kee: Public feedback on this issue has been emotional, divided and strongly expressed with the majority calling for its retention. Sir, Singaporeans are still a largely conservative society. The majority find homosexual behaviour offensive and unacceptable.

We are clearly enforcing societal morality (regardless of the way it was derived). Public perception on homosexual acts was characterised as a form of morality in the debates

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SG Parliament Comport with Devlin?

Majority Argument?

PM Lee: A heterosexual stable family is a social norm. It is what we teach in schools. It is also what parents want their children to see as their children grow up, to set their expectations and encourage them to develop in this direction. I think the vast majority of Singaporeans want to keep it this way. They want to keep our society like this, and so does the Government

We are clearly enforcing societal morality (regardless of the way it was derived). Public perception on homosexual acts was characterised as a form of morality in the debates

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Majority Argument?

Thio Li Ann: What is done in private can have public repercussions the moral ecology must be conserved to protect what is precious and sustains a dynamic, free and good society

Thio adopts the view that what is done in private can have public repercussions, which is consistent with Devlins view that private morality has an impact on public morality.

Point of departure from Devlin Departs from Devlin who derives societal morality from the reasonable man,

whereas Parliament derives it from the majoritys view; Siew Kum Hong: Risk of tyranny of majority demanding deference from the

minority will weaken social cohesion Counter: Reluctance to recognise sexual minorities because this will result

in more perverse groups from requesting such rights; where to draw the line 24



Disintegration thesis

Hri Kumar: It is stretching logic to suggest that the repeal will lead to a sudden proliferation of homosexual activity

Absurdity of the disintegration thesis Hri Kumar does not believe that the repeal of 377A will result in disintegration Note: in line with Harts criticism? Since Hart similarly does not buy Devlins view of society disintegrating lack of empirical evidence and etc

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Disintegration thesis

Seah Kian Peng: Yet, I am a Member of Parliament who believes that, as a nation, our families are not ready to have an open acceptance of the gay lifestyle, including same-sex marriages and gay adoption of young children. I believe that these key institutions would be weakened by the repeal of section 377A.

Seah Kian Pengs view is consistent with Devlins disintegration thesis as he believes that if we do not enforce moral norms, society will be weakened and disintegrate. Disintegration in the sense of the unravelling of the fundamental agreement between good and evil, and disrupting other laws

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SG Parliament Comport with Devlin? Dynamic nature of societal morality

Indranee: Societies do evolveit is a question of what society is prepared to accept. I come to what is Singapore prepared to accept. I do not think we want to have a situation where we demonise homosexuals. We certainly do not want to regard them as anything less than Singaporeans. But the point is: what does our society want for itself?

Parliament has accepted that laws and societal morality will change when the limits of tolerance change (Indranees slavery example, 377 which has been repealed)

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VIEW 1: SOCIETAL MORALITY IS IRRELEVANT

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Criminal activity must entail harm to others that is

recognisable and tangible ... In other words, if an act does not

harm others, then it should not be a crime (Siew Kum Hong)

PRO-REPEAL

Alludes to a narrow definition of harm

Aligns with Harts harm principle

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PRO-RETENTION Cites public health and safety as a legitimate purpose by 377A

Homosexual practices are efficient methods of transmitting sexual diseases and AIDS/HIV

These are not victimless crimes as the whole community has to foot the costs of these diseases.

Broader definition of harm: socio-economic and health concerns

Aligns with Harts harm principle

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The power to legislate morality is not limited to preventing

demonstrable harm

Adopts a broader definition: May include psychological harm? There have yet to be reports or convictions based on the

cause of shock or distress from the bare knowledge of homosexual practices being carried out


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VIEW 2: SOCIETAL MORALITY IS INADVERTENTLY ENFORCED

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There have been convictions over the years involving cases where minors were exploited

and abused

Criminalisation of sexual acts on minors as a direct manifestation of Harts qualification of paternalism to Mills harm principle

Comports with Hart as both recognise that the government should intervene in some circumstances where the individual may not be able to make rational and informed decisions

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There have been convictions over the years where male

adults committed the offence in a public place such as a public

toilet or back-lane

Aligns with Harts qualification of public indecency The criminalisation of a public display of homosexual practices

have never been contested against Generally accepted as an affront to our senses

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Although parliament has couched arguments in terms of harm and public offensiveness, it may still hinge on some standard of morality Inadvertent enforcement of morality Parliament based its decision on majority vote Are we enforcing societys morality as opposed to critical

morality?

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EVALUATION

Which role of societal morality do we agree with? Should societal morality not be a justification? Should it be the justification? Or should it be one of the justifications taken into

consideration?

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SOCIETAL MORALITY SHOULD NOT BE USED AS A JUSTIFICATION

If we adopt the position that societal morality should not be a justification for criminal laws, then we are saying that there should be some other justification(s) as for e.g. Harts position which is that we should base our criminal laws on the harm principle qualified by paternalism and public indecency.

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CRITICISM OF HART

While Hart seems to discount the use of societal morality in justifying criminal laws, it seems that he inadvertently relies on some form of morality when he talks about paternalism and public indecency Connected to this is the fact that the effect of

Harts theory may result in over-regulation. How is one to know what is to be considered publicly

offensive? As for paternalism, what acts will you step in to protect

people from themselves?

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SOCIETAL MORALITY AS JUSTIFICATION

If we adopt the position that societal morality should be the justification, then we are saying that laws should be used to enforce the morality accepted by that particular society. This can be interpreted as a good in and of itself, or

alternatively, it can be seen as a means to an end i.e. Devlins position which is that it is to protect the moral structure and ecology of the society so as to prevent it from disintegrating.

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CRITCISM OF DEVLIN

Devlins conception of societal morality derived from the reasonable man is contradictory He seems to have overplayed the significance of

society disintegrating. Does a society disintegrate without the moral structure? If Devlin means anarchy, by de-criminalising 377A and not

protecting the moral structure, will we have anarchy? Some say society should be defined by a group of people

with personal bonds. Inter-personal bonds. Does society disintegrate if these bonds are lost?

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CRITCISM OF DEVLIN

Devlins theory seeks to protect the moral and political structure existing. Therefore, if it was a Nazi society or one that find slavery to be moral, there is no way in which such laws can be struck down. Devlin does not enquire as to whether societal morality is

true or right

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SOCIETAL MORALITY AS ONE OF THE GROUNDS FOR JUSTIFICATION

If we adopt the position that societal morality can be one of the justifications taken into consideration, what weight do we accord to it? How does it interact with other possible justifications?

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CRITICISM OF PARLIAMENT

It is impossible to decipher how important the role that societal morality plays in deciding whether a criminal law can be justified based on it.

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SUMMARY

Extreme thesis

Moderate thesis [Devlin]

Weak thesis

Enforce per se

Prevent disintegration of society

Through harm principle

1. Enforcement of societal morality

Parliament?

2. Not enforced

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Thank you! Q&A

Documents

Wk 9 Qn 1 SMU Singapore Managemnt University