Morals Laws in an Age of Rights: Hart and Devlin at the Supreme Court of Canada

The American Journal of Jurisprudence, 2010

30 Pages Posted: 13 Feb 2009 Last revised: 28 Feb 2010

See all articles by Bradley W. Miller

Bradley W. Miller

University of Western Ontario - Faculty of Law; James Madison Program in American Ideals and Institutions, Princeton University

Date Written: February 12, 2009

Abstract

Constitutional challenges to morals laws - criminal laws intended to discourage self- and other-corrupting acts - have become a staple on the dockets of many constitutional courts. In this paper I examine justifications offered for morals laws that are thought to limit constitutional rights, using the Canadian decision R. v. Butler (1992) as an example. While Butler's holding on the constitutionality of "morality-based" legislation - and its underlying conception of morality - is famously muddled, critics of Butler have inadequately attended to - or have overlooked altogether - key distinctions of political and moral philosophy that are necessary for understanding morals legislation. The first step toward a sound reading of Butler - and toward a sound account of the place of moral judgment in constitutional decision-making - is to attend to a distinction in the judgment between conventional and "merely" conventional morality and to the debate between HLA Hart and Lord Devlin that inspired it. I examine Butler through the lens of the Hart/Devlin debate, and then outline an argument for the place of moral evaluation in legislation that prima facie limits constitutional rights.

Keywords: Rights limitations, critical morality, conventional morality, obscenity, freedom of expression, censorship, HLA Hart, Devlin

JEL Classification: K10, K14, K30

Suggested Citation

Miller, Bradley W., Morals Laws in an Age of Rights: Hart and Devlin at the Supreme Court of Canada (February 12, 2009). The American Journal of Jurisprudence, 2010, Available at SSRN: https://ssrn.com/abstract=1341940

Bradley W. Miller (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
519.661.2111 (80038) (Phone)
519.661.3790 (Fax)

James Madison Program in American Ideals and Institutions, Princeton University ( email )

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Princeton, NJ 08540
United States

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