Law and Sexual Morality
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The relationship of law and sexual morality is, in some respects, a special case of the relationship of law and morality. The controversy over "morals" has progressively narrowed the discussion of public versus private morality as it was originally framed by J.S. Mill, however. Modern debate has focused almost exclusively on sexual behavior, rather than on the widest range of human conduct. Nevertheless, the conflict between public and private morality with respect to prostitution, for example, illuminates the character of the paternalistic social interference abhorred by Mill and his philosophical descendants. In part, the questions in this area involve the need of the society to protect its members and itself from harm. "The enforcement of morals by the law" is staunchly defended and ferociously attacked perhaps because society's manner of addressing the sexuality of its members does reflect its wider ethical commitments. There is no doubt that attempts to regulate sexual behavior constitute the intervention of society into personal matters. At issue is whether society is warranted in making such intrusions. The debate about the relationship of law and morality centers on the limits of legal control over the behavior of persons within the society. The debate over control of specifically sexual behavior is therefore over the criteria for justifying social restraint of individual freedom in a given sphere of action. According to Mill, the potential
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d. Devlin suggested that the distinction, handed down from Mill, between private and public morality is spurious. Morality, including sexual morality, comprises the principles members of society implicitly agree on as part of the regulation of society. "An established morality," Devlin says, "is as necessary as good government to the welfare of society" (36). History shows, according to Devlin, that disintegration of society ensues when a members of society fail to adhere to a common morality, so that society is as justified in preserving the moral code as it is in preserving its other institutions.
Devlin recognized the problem of identifying which moral code the law is supposed to protect. He suggested, for example, that "widespread dislike" of an opinion or practice constitutes insufficient justification for legal sanctions against it. For behavior to qualify as a breach of morality sufficient to involve the machinery of the state in its suppression, it must incite real feelings of "intolerance, indignation, and disgust" in the common person, "the man on the Clapham omnibus." Devlin devised the use of the "disgust" of the common man as the means of selection from the multiplicity of judgements of morality and im
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Approximate Word count = 2708
Approximate Pages = 11 (250 words per page)
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