HOMOSEXUALS AND THE MORALITY DEBATE – HART DEVLIN/FULLER DEBATE AND THE DEVELOPMENT OF THE LAW ON HOMOSEXUAL LAWS (Research Paper Sample)

HOMOSEXUALS AND THE MORALITY DEBATE – HART DEVLIN/FULLER DEBATE AND THE DEVELOPMENT OF THE LAW ON HOMOSEXUAL LAWS Date Table of Contents TOC \o "1-3" \h \z \u 1.BRIEF SUMMARY OF THE ARTICLE PAGEREF _Toc7430386 \h 3 2.THE HART-FULLER/DEVLIN DEBATE PAGEREF _Toc7430387 \h 3 2.1.The Hart-Fuller Debate PAGEREF _Toc7430388 \h 3 2.2.The Hart Devlin Debate PAGEREF _Toc7430389 \h 7 3.POSITIVISM V NATURAL IN THE LAW PAGEREF _Toc7430390 \h 9 4.POSITIVE LAW, MORALITY AND THE LAW, CONSTITUTIONALITY AND HUMAN RIGHTS PAGEREF _Toc7430391 \h 13 4.1.United States of America and UK PAGEREF _Toc7430392 \h 13 4.2.The United Kingdom and EU Law PAGEREF _Toc7430393 \h 17 5.CONCLUSION PAGEREF _Toc7430394 \h 19 REFERENCES PAGEREF _Toc7430395 \h 21 BRIEF SUMMARY OF THE ARTICLE In his Article, Robert Burt discusses the interplay between morality and the law and how the same is connected to moral offences. He makes specific reference to same-sex offences. Since the paper was written during the last decade, it fails to capture the changes which have occurred in America, Europe and globally on issues such as the legalisation of same-sex relations and unions. However, it properly captures the debate on law and morality. The Article reveals the tension between law and morality in the regulation of private sexual conduct. It cites Mill and argues that the state coercion using legislation must, at most times, be aimed at secular harm, and at an act which is more than simple moral disapproval or approval of the conduct of an individual. John Stuart Mill had argued that “the only purpose for which power can be rightfully exercised over any members of a civilised community, against their will, is to prevent harm to others.” By this pronouncement, JS Mill implied that the law must avoid regulating personal matters and private affairs, especially if they do not harm other people. Most of the Article covers the debate between Hart and Devlin on morality and law. This shall be discussed hereunder, and in addition, the Hart-Fuller Debate. Further, the paper will look at the issue of same-sex marriages and offences, considering the debates outlined above. THE HART-FULLER/DEVLIN DEBATE The Hart-Fuller Debate Hart, in his original article on law and morality, published in the Harvard Law Review. The scholar, being a positivist, made several tenets of positive law as hereunder: Primarily, Hart argued that the law was a command of human beings; That there is no necessary link existing between morality (morals) and the law, and that the law is as it ought to be; That moral judgment cannot be defended or established, as statements of facts can, using rational arguments, proof, and evidence; That legal systems are ‘closed legal structures’ whereby correct legal determinations and conclusions can be extracted from logical means from predetermined legal rules without any reference to social policies, aims, or moral standards; and That the analysis and the study of the meaning of legal systems and concepts even though worth pursuing, is to be distinguished from the historical inquiries concerning the origin and causes of law, from the sociological inquiries of social phenomena and its relation to law, and from social criticism or appraisal of the law in terms of social aims, functions, morals or otherwise. Hart, expounding on the command theory, explains that there is no necessary connection thesis between law and morality. The idea of Hart was that the ideas of John Austin and Jeremy Bentham were in tandem with his suppositions, with exceptions of the command theory. Fuller, in his book The Morality of the Law, addressed the internal morality of law. In the book and even elsewhere, Fuller argues that the positivist vision of the law as merely a body of rules enacted by a sovereign is not only a mere vision but also misguided. He adds that law is a purposeful enterprise which continues based on reciprocal expectation by the citizen and the government. The author further contends that citizens will be more likely to agree with the law if it abides by certain moral principles. Thus, Fuller propounds that law cannot be separated “the purposive effort that goes into the making of law and the law that in fact emerges from that effort" To start with, Fuller and Hart all agreed that the command theory is unacceptable insofar as rendering laws of nature. Though utilitarians pointed out that laws were commands, Hart explained that they were simply “an expression by one person of the desire that another person should do or abstain from some action, accompanied by a threat of punishment which is likely to follow disobedience”. Of course, Hart criticises the idea on two grounds. First, that a desire for someone to abstain or do some actions accompanied by a threat and punishment is not a proper legal account. Hart equates such lawmaking to a perpetrator telling a victim, give me your money or your life with a gun pointed at the victim’s head. Secondly, the decrees are issued by a sovereign to whom the subject owes habitual obedience and given that the sovereign is not keen on obeying anyone superior to it. Thus, accordingly, Hart argues that laws, unlike normative phenomena, have rules and not habits as a key ingredient, and by focusing on rules, there is a more promising route of explaining the nature of law. Hart says that morals have nothing to do with but rather there are secondary rules which are united with secondary rules, and hence the irrelevance of morality. Fuller agrees on the example used by Hart, the symbolism of the gunman situation, and further chooses not to challenge it. However, he challenged Hart’s idea of secondary rules. Hart argues that secondary rules supplement primary rules of obligation, for instance, in the establishment of procedure and even the empowerment of bodies to make law - and as such, making acceptance a primary focus and not the habits of obedience. Fuller, in contrast, focuses on acceptance issues which Hart raises and argues that acceptance and morality are, in fact, inseparable. Fullers criticizes that Hart’s view is flawed in that sense cannot be made if the same ‘secondary’ rules are not morally acceptable. This is supported by the argument by the statement by Fuller that even the said acceptance of the secondary or primary rules ultimately relies on the perception that the said rules are necessary and rights. There are also major disagreements. Fuller thinks that the issue of interpretation is inextricably linked to morality and hence plays an important role in lawmaking, much more than positivists would like to agree. The justification for Fuller is that in the interpretation of the law, important questions are ‘what can this rule be used for?’, ‘what evil does the rule seek to rectify or cure?’, or ‘What good is the rule intended to promote?’. Thus, Fuller comprehensively establishes that the interpreters of the law must look at the ‘ought’ to grasp what the rule ‘is’. Hart proposes two major objections to the reasoning by Fuller. He adds that even if we agree that interpretation may be concerned with the ‘ought’, this ‘ought’ doesn’t necessarily refer to the moral ought, but rather the standard of criticism. Their exchanges give a clear view of the controversy of the debate on morality and the law, and why it is still a controversial one. One of the major cases cited by Hart and Fuller is the reasoning of Gustav Radbruch, a German jurisprudence professor who, before the Nazi was a positivist. The professor believed that laws were independent of morality and that even immoral laws would still be the law. Years on, he wrote to support post-war legal practice in the prosecution of local war criminals, informers, and spies for acts they had committed under the Nazi regime, even though the same acts were lawfully considered immoral. This ultimately shows the challenge which one faces in analysing morality and its connection to the law; the fact that a professor like Radbruch could be swayed from being a Hart and positive law supporter to acknowledging that there are key elements of natural law and morality which give legitimacy to the law, is confusing. In fact, the professor himself was repulsed by the perpetrators' argument when taken to trial, that their action under the Nazi regime was fully backed up and perfectly legal and lawful in that regime. The argument of Fuller on such trials can be seen clearly through Gustav Radbruch. Specifically, he argued that some Nazi stipulations, being immoral, were no laws at all. In fact, he added that some acts being not illegal under Nazi laws were properly forbidden by a higher law, thus making them binding despite being contrary to the Nazi laws. The Hart Devlin Debate In 1957, the Wolfenden Committee in Great Britain issued its report of the Committee on Homosexual Offences and Prostitution, which consequently recommended that there must remain a major area of private immorality and morality. The report further argued that immorality and morality are not the business of the law. The then British High Court Judge Devlin was quick to criticise the view of the report. This report was concerned with a proposed repeal of the British law that was designed to prohibit the promotion of sexuality. The judge argued that the price of tolerating serious deviance from a community constitutive morality is the resulting loss of very distinctive forms of interpersonal integration within the society, understood to be worthwhile for the community’s sake. George claims that the interpretation of Devlin is preferred over Hart’s claim. Thus, the law does and ought to give a sociological account and normative account of moral norms and any understandings as they make up a reciprocal relationship that underlines power, authority, and the law. According to Devlin, morality is the foundation of society and its continued existence. The author argues...