This essay explores the writing of Patrick Devlin in regards to philosophical conservatism and defends him in response to criticisms leveled by Martha Nussbaum.
In “Hiding from Humanity: Disgust Shame and the Law”, Martha Nussbaum offers a pointed critique of what she views as the legal role of disgust proposed by Patrick Devlin in “Morals and the Criminal Law.”
In spite of Nussbaum’s criticisms, however, this text wishes to make the case that disgust need not be as necessary to Devlin’s argument of collective moral judgement as it first appears.
Table of Contents
1. Introduction
2. Re-evaluating the role of disgust in Devlin’s framework
3. Theoretical insights regarding law and public morality
4. Conclusion
Objectives & Research Focus
This paper aims to rehabilitate Patrick Devlin’s legal philosophy by challenging Martha Nussbaum’s critique regarding the role of disgust in criminal law. The research seeks to determine whether Devlin’s framework necessarily relies on disgust as a foundational element or if it can be interpreted as a functional argument for aligning legal systems with collective public morality.
- The critique of Martha Nussbaum’s interpretation of Patrick Devlin.
- The functional relationship between public morality and legal enforcement.
- The potential pragmatic value of disgust within a legal discourse.
- Reconciliation of moral intuitions with the rule of law.
Excerpt from the book
Defending Devlin from the Critiques of Nussbaum
In Hiding from Humanity: Disgust Shame and the Law, Martha Nussbaum offers a pointed critique of what she views as the legal role of disgust proposed by Patrick Devlin in “Morals and the Criminal Law.” By first analyzing the universally motivating human emotion of disgust, Nussbaum concludes that, despite general importance as an emotion in human life, disgust has no place as a foundation for determining if an act or entity ought to be considered a threat to society. It follows from this conclusion then, that there appears no appropriate reason for using disgust as a basis for making certain human actions illegal. As an alternative, Nussbaum proposes instead that principles both more reliable and less open to contingent and oft-changing societal perceptions act as a basis for illegality rather than disgust.
In spite of Nussbaum’s criticisms, however, I wish to make the case that disgust need not be as necessary to Devlin’s argument of collective moral judgement as it first appears. Although problematic in how Devlin’s argument incorporates a notion of a static society, his argument for the rightness of collective moral judgement in law could seemingly be refined to not only address the concerns of Nussbaum, but accommodate them as a broader consideration of society under a framework of collective moral judgement.
Summary of Chapters
Introduction: This chapter introduces the tension between Martha Nussbaum’s critique of disgust as a legal basis and Patrick Devlin’s arguments on morality in criminal law.
Re-evaluating the role of disgust in Devlin’s framework: The chapter argues that Devlin’s core framework does not inherently require disgust to be foundational, but rather focuses on the alignment of law with public morality.
Theoretical insights regarding law and public morality: This section explores how allowing disgust as a form of negative feedback can pragmatically reinforce the rule of law and societal moral norms.
Conclusion: The final chapter synthesizes the argument, asserting that Nussbaum and Devlin are addressing different aspects of legal philosophy, and proposes a refined interpretation of Devlin’s thesis.
Keywords
Patrick Devlin, Martha Nussbaum, Disgust, Criminal Law, Public Morality, Legal Philosophy, Harm Principle, Rule of Law, Social Cohesion, Moral Judgement, Legal Justification, Societal Norms, Enforcement of Morals, Jurisprudence.
Frequently Asked Questions
What is the primary focus of this paper?
The paper evaluates the legal philosophy of Patrick Devlin, specifically addressing and challenging the critiques leveled against him by Martha Nussbaum regarding the role of disgust in law.
What are the central themes discussed?
The work explores the intersection of public morality and legal systems, the functional role of emotional responses like disgust, and the viability of Devlin’s arguments in contemporary jurisprudence.
What is the research goal?
The goal is to determine if Devlin’s framework can be rehabilitated to exclude disgust as a foundational necessity while maintaining its utility for explaining how law aligns with societal moral standards.
Which scientific method is utilized?
The paper utilizes a philosophical and analytical approach, specifically interpreting and deconstructing existing legal theories and scholarly critiques.
What does the main body cover?
The main body examines the specific arguments of both Devlin and Nussbaum, assesses the potential pragmatic benefits of disgust in legal enforcement, and reconciles these views within a framework of rule of law.
Which keywords characterize the work?
Key terms include public morality, legal philosophy, disgust, criminal law, and the enforcement of morals.
How does the author interpret Devlin's view on morality?
The author interprets Devlin as proposing a framework where the law acts as a mechanism to protect the essential existence of a society by reflecting its collective morality, rather than explicitly relying on disgust.
Can disgust play a functional role in law according to the author?
Yes, the author suggests that disgust can act as a form of "political pushback" or negative feedback that reinforces the protection of fundamental rights and societal values.
Does the author fully agree with Devlin's original arguments?
No, the author acknowledges that Devlin’s notion of a "static society" is problematic but argues that his broader thesis on the functional optimality of aligning law with morality remains valuable.
How does this paper distinguish itself from Nussbaum’s work?
It distinguishes itself by shifting the focus from the moral validity of disgust to the functional efficiency of Devlin’s proposed relationship between public morality and legal code.
- Citation du texte
- Seth Carter (Auteur), 2017, The Legal Role of Disgust. Defending Patrick Devlin from the Critiques of Martha Nussbaum, Munich, GRIN Verlag, https://www.grin.com/document/429678
