Hart-Devlin Debate
Wolfenden Report
- Chaired by Lord Wolfenden
- 1885 Criminal Law Amendment Act made homosexual activity between men illegal
- Set up departmental committee to consider both homosexual acts and prostitution
- Committee recommended that ‘homosexual behaviour between consenting adults in private
should no longer be a criminal offence’
- Said that ‘homosexuality cannot legitimately be regarded as a disease, because in many
cases it is the only symptom and is compatible with full mental health in other respects.’
- Said the function of the law is not to interfere of private life of citizens or enforce a particular
pattern of behaviour
- Discussed rise of street prostitution
o Associated with ‘community instability’ and ‘weakening of the family’
o Police crackdown following report
o Street Offences Act 1959
- Led to Sexual Offences Act 1967
o Replaced previous law on sodomy found in OAPA 1861
Hart-Devlin Debate
- Argued that homosexuality should be decriminalised based on the basis of:
o Freedom of choice
o Privacy of morality
- Professor Hart
o Legal philosopher
o Suggested danger of ‘populism’
Thought is needed before turning popular morality into criminal law
o ‘Before general moral feeling is turned into criminal law it is submitted to scrutiny of
a different kind from Sir Patrick’s.’
o More inclined to accept liberal ideas
o Is a practise which offends moral feeling harmful?
o Devlin does not prove that deviations from popular morality is harmful to society
o Compares to burning old women for witchcraf
Morality can be based on ignorance, superstition, or misunderstanding
o Claims Devlin mistakenly assumes society is identified on its morality
o Claims Devlin mistakenly assumes there is a shared and identifiable public morality
o Humanistic
Needs of individuals
o Society survives changes in basic moral views
- Lord Patrick Devlin
o Baron, Law lord, member of the Privy Council
o ‘The criminal law as we know it is based upon moral principle’
For a number of crimes it is only to enforce moral principle
o What extent should moral code shape our laws?
o Society is composed of shared moral ideas
How they should behave and govern their lives
Whatever threatens these threatens society
Society should protect itself
o Analogy between treason and homosexuality
Wolfenden Report
- Chaired by Lord Wolfenden
- 1885 Criminal Law Amendment Act made homosexual activity between men illegal
- Set up departmental committee to consider both homosexual acts and prostitution
- Committee recommended that ‘homosexual behaviour between consenting adults in private
should no longer be a criminal offence’
- Said that ‘homosexuality cannot legitimately be regarded as a disease, because in many
cases it is the only symptom and is compatible with full mental health in other respects.’
- Said the function of the law is not to interfere of private life of citizens or enforce a particular
pattern of behaviour
- Discussed rise of street prostitution
o Associated with ‘community instability’ and ‘weakening of the family’
o Police crackdown following report
o Street Offences Act 1959
- Led to Sexual Offences Act 1967
o Replaced previous law on sodomy found in OAPA 1861
Hart-Devlin Debate
- Argued that homosexuality should be decriminalised based on the basis of:
o Freedom of choice
o Privacy of morality
- Professor Hart
o Legal philosopher
o Suggested danger of ‘populism’
Thought is needed before turning popular morality into criminal law
o ‘Before general moral feeling is turned into criminal law it is submitted to scrutiny of
a different kind from Sir Patrick’s.’
o More inclined to accept liberal ideas
o Is a practise which offends moral feeling harmful?
o Devlin does not prove that deviations from popular morality is harmful to society
o Compares to burning old women for witchcraf
Morality can be based on ignorance, superstition, or misunderstanding
o Claims Devlin mistakenly assumes society is identified on its morality
o Claims Devlin mistakenly assumes there is a shared and identifiable public morality
o Humanistic
Needs of individuals
o Society survives changes in basic moral views
- Lord Patrick Devlin
o Baron, Law lord, member of the Privy Council
o ‘The criminal law as we know it is based upon moral principle’
For a number of crimes it is only to enforce moral principle
o What extent should moral code shape our laws?
o Society is composed of shared moral ideas
How they should behave and govern their lives
Whatever threatens these threatens society
Society should protect itself
o Analogy between treason and homosexuality
