Criminal Justice & Legal Philosophy
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Arizona State University *
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MISC
Subject
Philosophy
Date
Feb 20, 2024
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9
Uploaded by sedenig123
Criminal Justice & Legal Philosophy: Chapter 3
Relationship between rules and principles
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Principles are the reasons for rules
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Principles facilitate decisions in 3 ways:
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Creation of new rules
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Evaluating existing or proposed rules
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Providing an explanation about why rules exist
Studying Approaches to the Law
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Studying the connection between philosophies and the rules is important
because
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1. It can affect how someone enforces the law.
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2. It can affect how an individual actually behaves.
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3. It can affect how an individual votes for policies.
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4. It can affect an individual’s satisfaction with the legal system.
Analyzing the Law
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This chapter will focus on six concepts of the law that help to provide a full
understanding of the role law plays in society.
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1. What is the foundation of law?
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2. What is the rationale for law?
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3. How do we conceptualize law?
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4. What is the application of law to actual problems?
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5. What is the focal point of law?
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6. What is the role of discretion in law?
6 Concepts of Law
Analyzing the Law
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The Hart–Devlin debate captures an intellectual exchange between Patrick Devlin
and H. L. A. Hart (legal scholars).
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Devlin advocated idealism.
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Hart advocated pragmatism.
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The debate focused on whether the law should regulate morality.
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The Hart–Devlin debate was sparked by the Wolfenden Report (1963).
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This report studied laws about prostitution and homosexuality.
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The report recommended legalizing acts of homosexuality between consenting
adults.
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The report also recommended that private acts of prostitution be legalized, not
public ones.
Discussion Question
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Do you think laws should be created that are based on morality? Why or why not?
Patrick Devlin’s Legal Moralism
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Devlin disagreed with the recommendations of the
Wolfenden Report
.
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Devlin believed that the law should enforce public morality.
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Devlin believed that religion and morality were linked and he believed that
morality should be the basis for law and religion the basis for morality.
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Devlin’s philosophy was articulated through three questions.
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First, he asked whether society has the right to pass judgment at all on matters
of morals.
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Devlin’s answer was “Yes.”
○
Collective judgment would create a sense of public morality and morally
unacceptable behaviors (even if private) could be judged.
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Devlin’s second question was: Has society also the right to use the weapon of
law to enforce morality?
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Devlin’s answer was “Yes.”
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Shared public morality was the bedrock of society and without morality, society
would collapse
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Sustaining that morality was essential.
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Devlin’s third question dealt with how the government should go about creating a
legal code reflecting moral interests.
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Devlin believed that the criminal law could be used to control behaviors that lie
beyond the limits of tolerance.
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Behaviors that went against the public morality
Devlin and the Six Concepts of Law
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Devlin’s legal moralism can be assessed with the six concepts of law.
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Public morality is the foundation of law for Devlin.
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Devlin asserts that the public is duty-bound to follow morality.
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For Devlin, the purpose of law is to preserve society by maintaining its underlying
morality.
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○
A failure to do so would allow society to crumble as its moral foundation
shatters.
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Advocate for laws supporting values
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Proponents of legal moralism typically are unwilling to compromise on
this.
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For Devlin, the legal moralist forms law by considering what the average person
believes is morally offensive.
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If it is morally offensive, then it is criminalized.
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This is a nonempirical approach because it rests on beliefs about values and
truths that cannot be proven or disproved.
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According to Devlin, laws must be applied carefully.
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Application of law should balance law and liberty and recognize the realities of
what law can and cannot accomplish.
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Law must permit freedom, be made carefully, account for privacy in
enforcement, and be realistic.
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Idealists tend to judge the success of the law by assessing its outcomes.
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Not necessarily concerned with how the outcome is achieved as long as it
is the desired outcome
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Devlin perceived the law’s regulation of morality as essential to society’s survival.
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For Devlin, it is the outcomes that matter most to legal moralism.
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Legal moralists discourage discretion.
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Legal moralists argue that criminal justice practitioners should follow the public
morality underlying the law rather than replacing it with their own views of
morality.
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Underlying morality should be uniformly enforced.
H. L. A. Hart’s Legal Positivism
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Legal positivism views the law solely as a human creation and not as an attempt
to discover, confirm, or enforce higher moral standards.
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The legal positivist would not accept Devlin’s notion that the law should even
attempt to regulate morality.
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Hart identified five criteria for law that illustrate the theory of positivism.
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1. Laws are commands of human beings.
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2. There is no necessary connection between laws and morals.
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3. The analysis of legal concepts is worth pursuing and to be
distinguished from an assessment of morals.
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4. A legal system is a closed logical system in which decisions can be
deduced from predetermined legal ones.
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5. Moral judgments cannot be established or defended by proof.
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Hart’s approach differs greatly from Devlin’s
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Devlin’s approach is based largely on feeling and/or emotions in determining
what is immoral.
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Hart believes that feelings are not enough on which to base morality and the law.
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Emotionally based decisions about morality may infringe on individual
liberties.
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Hart believes that making decisions about the law must be more complex than
reducing it to questions about morality.
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Hart suggests that the first question should be whether the issue actually causes
some sort of harm.
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Hart does not believe that society is threatened by acts that pose no harms aside
from being immoral.
Hart and the Six Concepts of Law
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Hart believed that the foundation of law was private morality.
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He believed that individuals should be entitled to follow their own morality so
long as it is not harmful to others.
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He further believed that people have the legal right to do moral wrong.
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Hart was concerned about protecting individual rights.
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According to Hart, individual’s rights were sacrificed by laws that were based on
morality.
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Hart believed that individuals should have the right to do as they please as long
as it did not harm others.
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In creating law, Hart follows a rational process that is both logical and empirical.
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Creating law relies on careful study, its potential impact, its causes, etc.
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Lawmakers must work to identify the line between individual rights and harm to
society.
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Legal positivists want to collect multiple data points and analyze them to reach
the best decision in each individual case.
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In short, legal positivists value discretion to reach the best outcome for each
case.
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For legal positivists, the law is only successful if it follows a clearly articulated,
fair, and accepted process.
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The means by which the law operates is more important than the end result.
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The process must be carefully followed.
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Hart acknowledged that criminal law cannot cover all possible scenarios.
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Thus, discretion is inevitable.
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Hart argued that discretion could actually produce a better criminal justice
system.
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Discretion is part of the process to ensure that the law is properly implemented
and that individual rights are acknowledged.
Discussion Questions
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Do you agree more with Devlin’s position or Hart’s position? Why?
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Would there be behaviors where you favor one of their positions more?
Theories of Legal Idealism
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Theories of legal idealism tend to share the following common ideas:
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1. A systematic method is used to develop a legal system based on beliefs
held as truths without empirical evidence.
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2. Legal decisions draw on history and tradition, attempting to reflect
long-held understandings of the truth.
○
3. The purpose of the legal system is to create and serve a moral society
and if it does not, it has failed.
○
4. Laws that do not correspond to the standards of a public morality are
viewed as invalid.
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○
5. The legal system should consistently follow precedents when dealing
with similar cases.
○
6. Legal idealism competes with other legal theories and proponents of
the theory work to demonstrate their superiority.
Legal Naturalism
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Proponents of legal naturalism believe in the concept of natural law.
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A belief in natural law presupposes that there are universally accepted principles
of human behavior that are meant to apply to all persons, everywhere.
Rights and Interpretative Jurisprudence
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Dworkin can be classified an idealist because of his position on the role of
morality in law.
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He believed that legislators and judges could not ignore moral considerations
when framing and interpreting the law.
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He advocated for a more rational and empirical approach to determining
morality.
Critical Theories of Law
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Critical theory is a relatively new field (emerging in the 1970s).
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It is also a diverse field with a variety of different, but overlapping perspectives.
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According to critical theorists, the law was created by powerful individuals to
help them remain in power.
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Favored those with wealth and power
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Critical theorists have undertaken two distinct but related tasks.
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One task is to be critical of the status quo.
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Another task is to offer a better approach and to remedy problems they have
identified with the law.
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Critical theory is often associated with calls for a larger social reform beyond just
law.
Legal Paternalism
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Under the philosophy of legal paternalism, the government can pass laws that
protect individuals from self-inflicted harm or guide them toward their own good.
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Legal paternalists believe that the law should intervene when a behavior will only
hurt the individual engaging in the behavior, but nobody else.
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The challenge for legal paternalists is to identify which behaviors are risky
enough to be regulated.
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When an example is risky enough, law can be enacted to prevent that behavior.
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Soft paternalism—laws enacted to educate people about the risk
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Strong paternalism—laws enacted to prohibit the behavior
Discussion Question
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Do you think the law should be used to prevent self-inflicted injuries?
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Drug use?
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Wearing seatbelts?
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Cigarettes?
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Prostitution?
Theories of Legal Pragmatism
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Legal pragmatists, such as Richard Posner, would prefer to see the law based on
empirical evidence rather than grand concepts such as morality.
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Two legal philosophies that have their roots in the ideas of legal pragmatism will
be explored: legal realism and everyday pragmatism.
Legal Realism
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Legal realists give their primary focus to the decision-making processes of the
courts.
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They believe that the courts actually create law through accumulated decisions.
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The law becomes whatever the court says it is.
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Legal realists do not believe that the law has a specific foundation.
Everyday Pragmatism
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Richard Posner argues that the pragmatism of everyday people has become the
basis of law.
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The law is capable of functioning in our society because the citizenry allows it to
do so.
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If the law was unsatisfactory, people would protest or rebel against it, at which
point the law would no longer be legitimate.
Discussion Question
●
To what extent do you think that pragmatism of everyday people really
contributes to law?
Conclusion
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All criminal justice agencies are charged with upholding the laws of society.
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There are conflicting opinions over how this should be accomplished.
●
These perspectives help to show the purposes of law.
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