Liberalism and Legal Moralism: The Hart-Devlin Debate and Beyond*

Abstract. The legitimate impact of common morality on legal restrictions has been continuously discussed within the Western philosophy of law since Lord Patrick Devlin in the late 1950s presented his moralistic arguments against some liberal conclusions drawn by the English Committee on Homosexual Offences and Prostitution in their public report. Devlin's arguments were subsequently identified and refuted by Richard Wollheim, H. L. A. Hart and Ronald Dworkin, but in a way that later provoked further argument. In particular the attack against anti-moralistic principles set forth by Simon Lee (1986) owes much to the rather naive liberalism represented by the opponents of Devlin. The battle over liberalism and moralism from the Hart-Devlin debate to the present day is reviewed. In addition to the discussion of the philosophers mentioned above, a potential flaw in the argumentation of Joel Feinberg (1986) is considered.     

IS THE ASSOCIATION BETWEEN ALCOHOL USE AND DELINQUENCY CAUSAL OR SPURIOUS?*

We attempt to isolate the effects of alcohol on different types of delinquent behavior by identifying the spurious portion of the relationship. Using data on adolescents from Finland, we compare the relationship between drinking and delinquent behavior while sober to the total relationship between drinking and delinquent behavior (sober or not). For each type of offense, we find a substantial relationship between drinking and sober delinquency, which suggests a good deal of spuriousness. For crimes of petty theft (shoplifting and stealing from home), the relationship between drinking and sober delinquency is just as strong as the total relationship, which suggests the relationship is almost completely spurious. For violence, vandalism, car theft, and graffiti writing, the alcohol‐sober delinquency relationship is weaker, which suggests that alcohol has a causal effect on these offenses.     

Legal Paternalism and Legal Moralism: Devlin, Hart and Ten*

Abstract
H. L. A. Hart in his Law, Liberty, and Morality (1963) defended the view that legal paternalism and legal moralism can be clearly distinguished from each other. Hart also stated that while legal moralism is always unacceptable, paternalistic laws are often justifiable. In this paper it is argued that Hart held the right view for the wrong reasons. Hart defended legal paternalism by claiming, against J. S. Mill, that for various psychological reasons individuals do not know their own interests best. It will be shown in the paper that if this view is taken, it is impossible to reject legal moralism. The fact that paternalism is sometimes justifiable while moralism is not can be more firmly founded on a distinction made by C. L. Ten (1971). Ten's point is that in matters which concern only the individuals themselves, their actions cannot be legitimately restricted by appeals to the consequences of their action alone. Paternalistic control can be justified only if the decision-making abilities of the controlled individual are temporarily diminished.