Legal Moralism And Criminal Law


Debate around legal moralism is divided in to 2 arguments, first is irrespective of state and society there are certain moral values inherent in the society and these inherent moral values if violated, should be criminalized. In this it presupposes that morals predates the society. Second argument is that the society with the help of instruments of the State should penalize only those conducts which offend the moral values of the society. Under this the moral get the sanctity and validity post coming into existence of the society.

Difference between law and morality

There is a close relation between law and morality. Morality is larger than the law. Law is very systematic and specific, and it requires certain formal sanctions. Morality in in that sense in relation to law is more broader and flexible than perhaps law can be. Law is a systematic account of rules and along with this there are specific rewards and punishments for following or not following a law.

Law and Morality are not separated. Of courses, since it is the peculiar property of law to be enforceable, the boundary line of the distinction is a shifting one in history. It has shifted according as whether or not the fulfilment of definite moral duties was regarded by public opinion as necessary for the preservation of the concrete being of the community, and according as whether or not these duties were clothed in legal form.

Law gives man an absolutely private sphere, a fixed place of independence in respect to others as well as to the community.

Hart Devlin Debate

In a landmark selection the U. S. Supreme Court in Lawrence v. Texas held that that American legal guidelines prohibiting private homosexual activity between consenting adults are unconstitutional. The Court based its ruling at the notions of private autonomy to define one's personal relationships and of American traditions of non-interference with private sexual choices between consenting adults. The Supreme Court struck down the sodomy regulation in Texas in a 6–3 decision and, by means of extension, invalidated sodomy legal guidelines in 13 different states, making same sex sexual activity legal in each U. S. state and territory. The Court, with a five-justice majority, overturned its previous ruling on the same issue within the Bowers v. Hardwick , where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.

Wolfenden Report

In the 1950s a commission was set up via the government under the chairmanship of Sir John Wolfenden to analyze the difficulty of whether or not the legal guidelines that criminalized homosexuality and prostitution ought to be modified. Its findings were published within the Wolfenden Report in 1957. It advocated that homosexuality and prostitution must be legalized, with some regulations. Using the findings of psychoanalysis and social science, the report urged that public statutes avoid the attempt to legislate morality and that they concern themselves only with sexual acts that offend public decency or disrupt order. It argued that a few regions of behavior need to be left to individual morality, rather than legal regulation.

Paragraph 14 of the Report Stated:

“It is not, in our view, the function of law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary… It follows that we do not believe it to be a function of the law to attempt to cover all the fields of sexual behavior. Certain forms of sexual behavior are regarded by many as sinful, morally wrong, or objectionable for reasons of conscience, or of religious, or cultural tradition; and such actions may be reprobated on these grounds. But the criminal law does not cover all such actions at the present time; for instance, adultery and fornication are not offences for which a person can be punished by the criminal law. Nor indeed is prostitution as such. ”

Contemporary Issues

These days most people think that immorality of a particular form of conduct should not in itself be a reason for prohibiting the conduct. Therefore, most people think that adulterous relationship should not be punished. They are of the view that anything done by consenting adults, although immoral, should not to be illegal. They think that it is none of the business of the state to see whether competent adults engage in any type of immorality. As a result of such opinions, the laws against adultery and other forms of sexual offences outside marriage are gradually vanishing.

31 October 2020
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