Legal moralism is the view that the law can legitimately be used to prohibit conduct contrary to society`s collective moral judgments, even if such behavior does not cause physical or psychological harm to others. According to this view, a person`s freedom can legitimately be restricted simply because it contradicts the collective morality of society; Legal moralism thus implies that the state is allowed to use its coercive power to enforce the collective morality of society. if it`s not available, try the glossary of -Tad Dunne, PhD. Siena Heights University. 2010), which tells us: «Many of these definitions come at least in part from two generally accessible Internet sources. The first is from the University of San Diego (ethics.sandiego.edu/LMH/E2/Glossary.asp, accessed April 2, 2009). The second is part of a website adapted to the needs of the EDECEL Foundation`s London exams on «Religion in relation to philosophy, ethics and morality» (www.rsweb.org.uk/ ethics/glossary.html Task 4, Unit D1). I have shortened or expanded some of these definitions. Others, I composed on the basis of my own studies. Terms from certain other sources are indicated in the endnotes.
It was said earlier that Devlin`s moralism is the «artificial» variety in Hart`s words. He believed that the invisible links of common thought in a given society are not the same in different societies. Some societies, for example, abhor polygamy, and others find it a worthy form of social organization. In different ways, monogamy and polygamy may partly represent the invisible bonds of shared thought in different societies. For Devlin, it follows that in one society the law can be used to impose monogamy against polygamy, and in the other it can be used to impose polygamy against monogamy, if the latter threatens the former in both cases. In industrialized societies, Devlin tells us, it is generally true that monogamy is «embedded in the house in which we live and cannot be eliminated without bringing it down» (Devlin, 1965, p. 10). But this is only an accidental truth, and if our homes were built differently, the content of the law to be applied could legitimately be the opposite of what it is. Morality is conventional for Devlin. Devlin`s narrative unacceptably implies that a corrupt and immoral society has as much right to perpetuate itself as a decent society, provided it is able to integrate society. He also works, as we have just seen, with an unsatisfactory understanding of what morality is. This leaves open the possibility of another explanation of legal moralism, which does not make these mistakes and regards morality as rational, but also adheres to Devlin`s assertion, quoted at the beginning of the article, that «there is no area of morality into which the law must never enter.» His own narrative does not give a clear path, but his challenge to those who propose the principle of harm and a similar statute of limitations is to provide an adequate basis for isolating certain areas of state morality when passing its law.
Here is a good general definition and overview of ETHICS. The preventive justification argues that the detention of a person for unlawful acts is justified because it prevents that person from committing illegal acts against society during the period of detention. The rationale for rehabilitation is that the sentence is justified by the impact it has on the offender`s morality. Each of these justifications suffers from the same flaw: crime prevention and offender rehabilitation can be achieved without the deliberate discomfort, which is a punishment. For example, crime prevention may involve incarcerating the offender, but it does not require incarceration in an environment as unpleasant as those usually found in prisons. It is clear that the law has limits. It has practical or «mid-range» limitations; What legislators are trying to do can fail in many ways. What is more interesting, however, is that the law has limits in principle? The best-known positive answer to this question is that of John Stuart Mill. Mill`s «harm principle» is discussed in this article along with the more recent defenses of the principle by Joel Feinberg and Joseph Raz.
Other influential proposals for principled limits of law are also explored: for example, the suggestion that the law must avoid certain types of otherwise valid moral grounds, and that the law must be neutral in some sense. It is proposed that finding principled limits to the law is a difficult task to achieve. Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content of law. According to Fuller, the law is necessarily subject to a procedural morality composed of eight principles: The most well-known occasion for interpretation is conversation. We interpret the sounds or marks that another person makes to decide what they said. Artistic interpretation is another: critics interpret poems, plays and paintings to defend a vision of their meaning, theme or point. The form of interpretation we are looking at – the interpretation of a social practice – is similar to artistic interpretation in this sense: both aim to interpret something created by humans as an entity distinct from them, rather than what people say, as in conversational interpretation» (Dworkin 1986, p. 50). Feinberg is as keen to deny the legitimacy of «legal moralism» as a legitimizing ground as it is of (hard) paternalism. These remarks show that Hart believes that Dworkin`s theoretical goals are fundamentally different from those of positivism, which, as a theory of analytic jurisprudence, is largely concerned with conceptual analysis. Dworkin, for his part, understands his work as conceptual, but not in the sense Hart views his work: H.L.A. Hart (1963) points out that Devlin overestimates the extent to which maintaining a common morality is necessary for the survival of a society.
Devlin attempts to infer from the need for a common social morality that the state is allowed to legislate sexual morality (particularly prohibiting sexual relations between persons of the same sex), but Hart argues that it is implausible to think that «deviations from accepted sexual morality, even of adults in private, are something that, like betrayal, threatens the existence of society» (Hart 1963, p. 50). While the application of certain social norms to protect life, security, and property is probably essential to a society`s existence, a society can survive a variety of behaviors in many other areas of moral concern, as evidenced by controversies in the United States over abortion and homosexuality. Let`s take this last example from the previous paragraph: the mandatory wearing of electronic tagging devices. England U-21 international Jermaine Pennant has been included in Birmingham`s starting line-up to face Spurs in a match in the English Football League`s top flight: the stuff most English boys dream of! It was only while Pennant was playing that he was serving a sentence after being convicted of a drunk driving offence. Part of his sentence required him to wear an electronic label. The arbitrator ruled that the tagging device was safe as long as it was properly padded under his sock. «He just wants to get his life back and go out and play football,» manager Steve Bruce said.