The Hart-Devlin debate is one of the most well-known arguments in legal philosophy. Named after H.L.A. Hart and Lord Patrick Devlin, the debate itself ranged over subsequent pieces of writing that spanned the 1950s and 60s.

The exchange itself is over the use of laws to enforce societal norms. The issue was raised after the Wolfenden Report was released in Britain in 1957. The report basically revolved around legalising homosexual acts (which was previously illegal) as well as prostitution. The conclusion of the committee presented in the report stated that homosexual acts between consenting adults should be legalised, as it was not the business of the law to make decisions on private moral issues. Both Devlin, a judge, and Hart, an academic, sat on the committee. However, they objected to each other’s stance and continued the debate long after the report was made and expanded it to morality and law in general rather than just about homosexuality and prostitution.

Lord Devlin rejected this basis for legalising homosexuality and in general. Devlin wrote several books and papers outlining his dismissal of the committee’s report and Hart’s stance on the subject. He believed that without morality the law “… destroys freedom of conscience and is the paved road to tyranny”. He thought that if the law did not enforcement moral norms that society would start to fall apart. Devlin believed that uniform moral standards were what held cities and countries together. These norms could be discerned by the general consensus of everyday people based on what they find to be acceptable. While he thought that privacy should be respected, Devlin definitely felt that there was nothing that was off limits to the law.

Devlin’s approach has some major flaws, the prominent of which is the evolution of morality. Morality of society may change much faster than lawmakers want or faster than the laws themselves. As well, change generally starts in a minority and progresses until it becomes the norm. If Devlin were to have his way, the minority would be stifled and would never be able to develop properly to object to the normative standards in place. No one person, or society, knows exactly what is ‘right’, and therefore they should not enforce their morals on other persons or societies.

H.L.A. Hart, who was later a professor of Jurisprudence at Oxford, took the side of Wolfenden and the committee. He warned against the tyranny of the majority and populism. Hart believed that diversity could be negatively affected by the conventional morals of those in power. This is an individualistic viewpoint, as it focuses on the rights of a person over the collective to do what they want rather than letting their actions be dictated by society. Hart appeals to Mill’s harm principle in his argument, stating that unless something is harmful to society the government has no right to interfere in the lives of individuals.

In many ways Hart won this debate in name only. However, he made his argument so sound that his version of the harm principle theory has come back to eat itself. Now instead of assessing whether or not something does harm to society, it seems that everything harms society and the question is not harm, but what kind and which is more harmful. The problem with this approach is that indirect or personal harm is impossible to assess against other kinds of harm. All the claims of harm cancel each other out, killing the harm principle.

The harm principle is not completely dead. It can be resuscitated if lawmakers make a concerted effort to bring into check the myriad ‘harms’ that get considered when drafting new statutes. They need to also kill the idea that minor harms can outweigh individual freedoms. When balanced, freedom should always win.

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