ABSTRACT
In this essay, H.L.A. Hart examines the claims of Lord Patrick Devlin and others who attempt to justify the right of society to enforce morality through the criminal law. He argues that all of the arguments put forward by legal moralists are deficient. The primary weakness stems from their failure to distinguish between the conventional, or positive, morality of a group (i.e., the moral opinions actually held by the members of some group, including the majority of society) and critical morality (i.e., moral opinions that can be reasonably defended or justified). Devlin, for example, claims that society has the right to enforce the conventional moral views of its members, even though such views may be entirely arbitrary or based on ignorance, prejudice, and the like. Hart argues instead that only that portion of morality that can be critically defended ought to be enforced through law, especially if that law is criminal law.
