October 7th, 2008 Lecture ? Notes Patrick Devlin ? Morals of the Criminal Law -Morals of the Criminal Law was a lecture given at Oxford -Devlin was not a philosopher; he was a judge, sat on highest bench in Britain -Interprets the law and applies the law ? observations carry more weight -Discussion was prompted of Wolfenden Report -Took a look a criminal law in Britain -Criminal Law / Criminalization of Conduct= decision by a legislative society that is elected officials to determine that some type of conduct should be prohibited, and failure to ignore prohibition and engaging in that behavior subjects you to some kind of punishment -What constitutes a crime? -Two types of crime: -Mala In Sei ? Conduct so bad that every society would prohibit it -?Wrong in Itself? -Example - Murder -Mala Prohibitum ? Society wants conduct to be treated as wrong, but conduct is not ?wrong in itself,? this may differ among societies -Example ? Drug Laws -Raises important challenge to John Stuart Mill and to Justice System -Mill says that there are limits on what the law can do -Law can become involved when harm is done to others -Law cannot become involved when harm is done to self -Soft Paternalism -Devlin talks about morals and criminal law -Is society ever justified in interfering with liberty to prevent an individual from taking part in immoral conduct? -What is moral and immoral? -Devlin mostly talks about crimes of prostitution and engaging in homosexual conduct -Bowers Supreme Court case ? Georgia punished man for having homosexual sex in his own home -Picked up by ACLU for reasons that this conduct always has potential punishment (20 years) -Devlin discusses why laws like this are acceptable -Gives problems for Mill because Mill does not discuss immoral conduct -Says nothing about legal moralism -Use of the law to prohibit what society deems immoral even though it may not be harmful to others -Pages 7 and 8 -Raises three questions -Has society the right to pass judgment on morals? Is there public morality or private morality? -Society has a moral structure in which they agree upon -Uses marriage as an example -Marriage is moral institution, homosexual is not -Based on history ? Christian institution of marriage became imbedded in society, not there because it is Christian, it got there because it is Christian, it remains because it is adopted into beliefs and moral principles of society (?and cannot be removed without bringing it down?) -Proposition 8 ? There can be no prohibition on same sex marriages; decided by California Supreme Court -Does society have the right to use the weapon of the law to enforce it? -Does society use weapon of the law on all cases or just some? And if some, what distinguishes certain cases? -Devlin is concerned that if a society has a set of moral principles that are in place, if you undermine those values then you can potentially undermine that society -Devlin says that society cannot tolerate rebellion -Marriage part of moral code that condemns adultery and fornification -Before we decriminalize conduct, we want to be careful that that kind of conduct is so ingrained in society that other conducts related to that conduct will potentially undermine society -Devlin says Mill did not completely get it right ? criminal law can prohibit people from taking part in actions / conduct that are / is immoral to society -Look at Top of Page 13 ? Important Passage -There are standards ? it is not only harm to society and harm to self -Mill did not recognize moral standards of a society -If he did, then he would recognize that law must be used to prevent immorality from spreading -Says immorality is like treason -To prevent government from being overthrown you prevent treason from taking place -Look at bottom page 16 and top of page 17
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