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

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