Essay on The notion that morality should be private

Submitted By edwin1967
Words: 1930
Pages: 8

The notion that morality is, or should be private seems quite reasonable on the surface to some, however, it is hoped that by the conclusion of this discussion that one will be swayed that morality per se cannot be left to the individual conscience at all times, (if ever), indeed, it is societies overall responsibility to ensure that a general principle is adhered to in order for the protection of those who either wish to exercise ‘freedoms’ autonomously, or protect those who maybe affected directly or indirectly by such actions. In order to demonstrate the above, this argument will concentrate on one issue which has been identified as causing concern in certain quarters who regularly address the question of morality within society and applying such laws to govern its citizens. The issue which going to be addressed in this discussion is that of prostitution First it would be prudent to focus on Professor Hart and Lord Devlin who came into contact with each other when debating private morality and the law. Hart Professor of Jurisprudence at Oxford, maintained that the law had no business concerning itself with matters of private morality. Devlin viewed by many of his day as a 'liberal' judge, however, thought differently. He argued that:

‘whether it was the law's business or not – [ and he thought that sometimes it might be] - the law was clearly engaging in it all the time’ 1

He produced numerous examples to illustrate his case. Hart then made what Edgar Lustgarten used to call his fatal error. He wrote that many of the examples which Devlin had cited were:

not of interference in private morality as such but of justifiable paternalism by the state.2

In essence what this meant was the notion that one persons viewpoint ‘paternalism’ was another persons interference in private morality ie; forcing someone to do or, more usually, to refrain from doing something because the state thought it was for that person's own good. It was not a question of legal theory but of where you stood politically.

The main issue was and still is today is to what extent morality can be embodied by the law. Additionally and more to the point of this discussion, should it?

What one finds is that morality in the broad sense (preached and/or practised) of some among the dominant segments of a society has very often infused the law. There is a tendency for the law to be liberalised in the direction of allowing people with divergent values to live and let live, rather than for some to be condemned and legally sanctioned. This tendency, and the arguments surrounding it, can be clearly seen in the 1957 Wolfenden Report 3.

Up until now, the laws associated with commercial sex have rested on the outcomes of the Wolfenden Report on Homosexual Offences and Prostitution. Heralding libertarian principles, the Report explicitly stated that the function of the law was to obstruct those who Offend against public order and decency' or 'expose the ordinary citizen to what is offensive' (1957: 8)4.

The dilemma of where the law should sit in relation to private, consensual sex acts was never really a sticking point for the post-war thinkers. Instead, they were adamant that there should remain 'a realm of private morality and immorality which is, in brief and crude terms, not the law's business'5. As a result, in British law 'it is legal to be, but not to work as, a prostitute'6, because the relationships that surround the organising, advertising and negotiation of commercial sex have been steadily criminalised over recent years.
InJuIy 2OO4, the Home Office published a document, 'Paying the Price: A Consultation on Prostitution', which sparked a four-month period of mild media interest. Behind the scenes, meanwhile, there was a flurry of discussion forums, working groups, draft responses, and outrage.
The 'prostitution community' which include those who are sex providers, purchasers, organisers and campaigners, as well