• Legal Paternalism • Paternalism is a protective legislation which signifies the state intervention in the interest of the individual concern or in the interest of the community as a whole. • Legal paternalism views that it is permissible for the state to legislate against what Mills calls ‘self-regarding actions’ when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves. • Eg: law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider. • Prof Hart- accepts the need for the law to enforce some morality. The real area of dispute is thus where the line should be drawn. 26
• Mill drew it at “harm to others”. • Hart extended the role of the law by his acceptance of ‘paternalism’, in addition to Mill’s reliance on harmful consequences to others. • Hart – favours to Paternalism and opposed Legal Moralism. • Paternalism according to Hart is the protection of people against themselves. • Paternalism thus may intervene to stop self-inflicted harm such as the results of drug-taking or cigarette smoking or requiring the use of seat belts. • Paternalism is used not to enforce conventional morality but because of doubts as to the capacity of the human being to make a rational decision, especially where the person is mentally disturbed or physically ill. • 27
28 4.9 PUBLIC MORALITY V. PRIVATE MORALITY For some, morality is purely a private matter for individuals, and what is done in private should only be of their own concern. Wolfenden Report on Homosexual Offences and Prostitution (1957) recommended for the decriminalization of homosexuality between consenting adults in private. Even if it is considered immoral, it will not affect the morality of the society as the function of criminal law is only to preserve public order.
29 This led to Hart- Devlin Debate Lord Devlin : The primary function of criminal law is to maintain public morality. Law should not condone immoralities as all immoralities will erode social values. The society will be adversely affected. However, everyone has the freedom and privacy to behave in his own way. Tolerance should be granted to them as long as their acts are reasonable to any right-minded man; and not disgusting and intolerable.
30 Hart : Immoralities do not necessarily affect the integrity of society. Criminalizing certain immoral acts will result in personal misery. Furthermore, how do one gauge what is the nature of general morality produced in the mind of a right-minded man? Devlin’s approach puts emphasis on society. Every immoral act starts from an individual. If not nabbed or controlled, it engulfs the whole society.
31 CRIME WITHOUT VICTIMS • “Crime without Victims” – Laws where large sections of the society do not recognize as legitimate and simply refuse to obey. • However, it is needed as some section of the society regards these acts as morally repugnant and self – inflicted harm. • The common characteristics of these crimes are: (i) Activities which involve no harm to anyone except the participants (ii) they occur through willing participation (iii) No victim of the crime to lodge complaints to the law enforcement agencies (iv) the law is very difficult to enforce.
- Spring '16
- Lawrence v Texas, Prof Hart, Lord Patrick Devlin