The Devlin-Hart debate | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 55 minutes
The Devlin-Hart debate A-Level Law revision examines two competing approaches to the legal enforcement of morality. OCR specifically requires students to understand the main arguments and issues in the debate and to apply them to specific areas and cases. Devlin supports the law protecting a common morality to prevent the disintegration of society, while Hart's approach gives central importance to personal autonomy. The debate therefore builds directly on the legal enforcement of morality [The legal enforcement of morality] and provides a framework for evaluating morally controversial laws.
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain Devlin's principal arguments about common morality.
Explain Hart's competing approach based on personal autonomy.
Distinguish the two approaches to the legal enforcement of morality.
Apply Devlin and Hart to morally controversial areas and cases identified in OCR material.
Compare the strengths and weaknesses of each position.
Reach supported judgements about when law should enforce morality.
Revision Notes 📚
What is the Devlin-Hart debate?
The Devlin-Hart debate concerns a fundamental question about law and morality:
How far should the law enforce moral values?
OCR specifically requires knowledge of:
the main arguments and issues in the debate;
application of those arguments to specific areas and cases;
evaluation of law and morality.
The debate presents two contrasting priorities.
Devlin emphasises the importance of protecting a common morality because he believes shared morality is important to the continued existence of society.
Hart places greater emphasis on personal autonomy, meaning that individuals should have significant freedom to make choices for themselves.
OCR mark schemes describe the contrast directly as:
Devlin's desire for law to uphold a common morality so that society does not disintegrate;
Hart's utilitarian approach and his emphasis on the centrality of personal autonomy.
This is the core contrast you need to know.
Devlin's approach
Devlin's position starts from the importance of shared morality.
According to the approach identified in OCR assessment materials, society needs a common morality and law can legitimately help preserve it. Without sufficient shared moral values, society risks disintegration.
A useful OCR-level summary is:
Devlin believes that law may legitimately enforce a common morality because shared morality helps hold society together.
This means legal intervention can sometimes be justified even where the issue is not simply whether one individual has directly harmed another.
Common morality
A common morality is a set of moral standards shared sufficiently widely within society to contribute to its cohesion.
Devlin's argument gives those standards legal importance.
The reasoning can be expressed as:
Society depends upon shared values.
Those values form part of what holds society together.
Serious attacks on common morality may therefore threaten society itself.
Law may legitimately protect that shared morality.
The important point is that Devlin does not treat morality as purely private.
Morality can have a wider social function.
Why would law need to protect common morality?
If moral standards help bind society together, supporters of Devlin can argue that the law should sometimes act to reinforce them.
Moral disapproval alone is an informal form of control.
Law is stronger because it can create:
enforceable prohibitions;
criminal liability;
formal sanctions;
legally recognised boundaries.
Devlin's approach therefore provides a justification for some forms of legal moralism, meaning legal control based upon the protection of morality.
Devlin and social cohesion
The strongest Devlin argument concerns social cohesion.
If society depends upon a shared framework of moral values, allowing those values to collapse could weaken the bonds holding society together.
This creates a reason for law to protect more than individual physical safety.
The law may also help defend values regarded as fundamental to the community.
OCR's mark schemes repeatedly frame Devlin's position in precisely these terms, the law should uphold common morality to ensure society does not disintegrate.
Hart's approach
Hart provides the competing position.
OCR describes Hart's argument as a utilitarian approach which emphasises the centrality of personal autonomy.
A useful OCR-level summary is:
Hart gives greater weight to individual autonomy and challenges the idea that law should automatically enforce a shared moral view.
This moves the focus from:
What morality should society impose?
towards:
How far should individuals be allowed to make their own choices?
Personal autonomy
Personal autonomy means the ability of individuals to make choices about their own lives.
Hart's approach gives autonomy central importance.
This is particularly relevant where:
adults make voluntary choices;
the behaviour is private;
society morally disapproves of the behaviour;
legal enforcement would significantly restrict personal freedom.
The contrast with Devlin is therefore especially clear.
Devlin: protecting common morality may justify restriction.
Hart: respect for personal autonomy weighs against unnecessary legal interference.
Hart and moral disagreement
Hart's approach becomes especially significant in a pluralist society.
You already know from morality in a pluralist society [Morality in a pluralist society] that OCR expects students to understand the wide range of moral standards and values within society.
If people disagree about morality, there is a difficulty with Devlin's idea of common morality:
Which moral view should the law enforce?
Hart's emphasis on autonomy offers a possible response.
Rather than requiring everyone to live according to one disputed moral view, greater space can be given to individuals to make their own choices.
The central disagreement
The debate can be reduced to one key tension:
Devlin | Hart |
Emphasises common morality | Emphasises personal autonomy |
Shared morality helps hold society together | Individuals should have significant freedom to make personal choices |
Law can legitimately protect society's moral standards | Moral disapproval should not automatically justify legal restriction |
Moral enforcement may protect social cohesion | Excessive moral enforcement may interfere with autonomy |
Stronger case for legal intervention | Stronger case for limiting legal intervention |
This comparison is the heart of the lesson.
However, an A-Level answer must go further than memorising the table.
OCR requires you to apply the competing arguments to particular areas and cases.
Devlin, Hart and pluralism
Pluralism creates one of the strongest challenges for Devlin's argument.
A pluralist society contains a range of moral standards.
Therefore, identifying one common morality may be difficult.
OCR's assessment materials recognise that pluralist societies contain such a wide range of standards that it may be very difficult or impossible for law to please everyone.
This produces a strong criticism of Devlin:
Devlin says law can protect common morality.
Pluralism means society may contain competing moralities.
Therefore, determining what counts as "common" morality can be difficult.
Law risks enforcing one group's morality against another.
Hart's emphasis on autonomy may appear more compatible with this diversity.
But pluralism does not completely defeat Devlin
Pluralism does not necessarily mean there are no shared values at all.
There may still be areas in which significant moral agreement exists.
A supporter of Devlin could therefore argue that law can protect those values which are sufficiently central to society.
The evaluative issue becomes:
How much agreement is enough to justify legal enforcement?
That is much harder to answer.
Devlin, Hart and changing morality
OCR also expects students to understand that moral views can change over time.
Assessment material gives examples including:
changes in gay rights;
marital rape, which was not treated as a crime until 1991.
Changing morality creates another challenge for the idea of common morality.
If the law enforces the morality of one period, later generations may reject that moral position.
This produces an argument supporting Hart:
A strong emphasis on personal autonomy may reduce the risk of law imposing moral standards which later become outdated.
However, Devlin's approach can respond that common morality itself may change.
The question then becomes whether the law is capable of adapting as society's values develop.
Applying Devlin and Hart to specific areas of law
OCR mark schemes identify a number of morally controversial areas and cases that may be used in law and morality questions.
These include:
sexuality and consent;
drug legalisation;
assisted suicide;
outraging public decency;
body modification;
sadomasochism and consent;
necessity and homicide;
the death penalty.
Relevant cases identified by OCR include:
R v Brown;
Wilson;
Inglis;
Gilderdale;
Pretty;
Nicklinson;
Re A.
You do not need to use every example in an essay.
Two or three well-developed applications are much stronger than a long list.
Consent: R v Brown
One of the strongest examples for the Devlin-Hart debate is consent.
You studied the substantive rules in consent [Consent].
OCR examiner material identifies Brown as a useful case for discussing the limitations placed upon consent and the tension between law and morality.
For this lesson, focus on what the case allows you to debate.
Applying Devlin to Brown
A Devlin-style argument can support legal restriction.
The conduct concerned morally controversial consensual activity.
From Devlin's perspective:
individual agreement does not necessarily prevent wider moral concerns;
society can legitimately establish moral boundaries;
law may reinforce standards considered important to the community;
autonomy does not automatically defeat common morality.
Therefore, Brown can be used to illustrate a legal approach more compatible with moral restriction.
Applying Hart to Brown
Hart's approach generates a different argument.
Where adults voluntarily engage in conduct, personal autonomy becomes highly important.
A Hart-style criticism could therefore ask:
Why should strong moral disapproval itself justify legal intervention?
Should individuals have greater control over consensual private behaviour?
Is the law protecting people or imposing a moral judgement?
The case therefore provides an excellent conflict between:
common morality ↔ personal autonomy
Consent: Wilson
OCR examiner material also identifies Wilson alongside Brown when discussing limitations on consent.
Using the cases together is particularly effective because they allow you to examine how difficult it can be to determine the point at which the law should intervene in consensual behaviour.
Devlin and Wilson
A Devlin approach allows legal limits where necessary to protect the moral standards of society.
The question becomes whether the behaviour falls on the side of conduct which society is justified in controlling.
Hart and Wilson
Hart's focus on autonomy gives greater significance to voluntary choices made by individuals.
This supports caution before criminal law interferes with consensual activity merely because some members of society dislike or disapprove of it.
Why Brown and Wilson work well together
A high-quality answer can use the comparison to ask whether legal rules concerning consent consistently balance:
protection;
common morality;
private choice;
personal autonomy.
OCR's 2023 examiner report specifically noted that successful students used Brown and Wilson to develop arguments about moral tensions.
Body modification
OCR mark schemes expressly identify body modification as another morally controversial area.
The Devlin-Hart debate applies naturally.
Devlin-style argument
Law can establish limits upon bodily conduct where society regards particular practices as contrary to important shared moral standards.
Hart-style argument
Personal autonomy suggests that individuals should have substantial freedom to make decisions concerning their own bodies.
The question is therefore:
At what point does legal protection become unjustified moral interference with personal choice?
That is a classic Devlin-Hart issue.
Assisted suicide
OCR also specifically identifies assisted suicide as an area of moral controversy and names Pretty and Nicklinson among relevant cases.
This area makes the competing arguments especially clear.
Devlin and assisted suicide
A Devlin-style argument can place weight upon a shared moral commitment to protecting life.
Law may legitimately reinforce important social values even where individuals seek greater freedom.
Legal restrictions can therefore be justified as protecting values regarded as fundamental to society.
Hart and assisted suicide
Hart's emphasis on personal autonomy supports the competing argument.
Choices concerning an individual's own life may be seen as deeply personal.
A Hart-style analysis may therefore ask whether law should impose a disputed moral view upon an individual who seeks to make an autonomous choice.
The conflict is again:
shared moral protection ↔ individual autonomy
Pretty and Nicklinson
OCR identifies Pretty and Nicklinson as useful examples in law and morality discussion.
When using them, avoid turning the paragraph into a detailed case summary.
Instead write something like:
The assisted-suicide cases illustrate the competing concerns at the centre of the Devlin-Hart debate. A Devlin approach can justify restrictions by reference to important shared values, while Hart's emphasis on personal autonomy supports arguments for greater individual freedom.
That is the synoptic skill OCR rewards.
Necessity and homicide: Re A
OCR also identifies necessity and homicide, including Re A, as an area where law and morality clash.
The 2023 examiner report specifically praises the use of Re A as an example of the moral challenges faced by the legal system.
The case illustrates an important point:
Sometimes the law must reach a decision where every available option contains serious moral difficulty.
Applying Devlin
A Devlin-style analysis may emphasise the moral values which law seeks to preserve and the importance of protecting principles regarded as fundamental to society.
Applying Hart
A Hart-style analysis emphasises the need to scrutinise whether law should impose a particular moral answer where competing interests and individual circumstances are complex.
The application is less straightforward than with consent, which itself makes Re A useful.
It demonstrates that moral problems cannot always be solved by one simple rule.
Drug legalisation
OCR mark schemes specifically identify drug legalisation as an area suitable for evaluating morality and law.
The competing approaches can be applied without going outside the required theory.
Devlin-style argument
Legal restrictions may support standards which society regards as important and contribute to maintaining accepted social boundaries.
Hart-style argument
If moral disapproval is a major reason for intervention, personal autonomy provides a reason to question how far law should control individual choices.
A developed answer would then consider whether the issue involves interests beyond purely personal autonomy.
The important point is that Hart does not automatically produce the answer "legalise it", and Devlin does not automatically produce the answer "ban it".
They provide competing principles with which to analyse the issue.
Outraging public decency
OCR also identifies outraging public decency as an example of law and morality coming into contact.
This may initially seem favourable to Devlin because the law itself reflects standards about acceptable public conduct.
A Devlin-style argument can say that public moral standards form part of maintaining a functioning community.
However, a Hart-style response can question how far the law should enforce contested moral standards, especially where moral attitudes change.
This brings pluralism back into the debate:
Whose standard of decency is being enforced?
The death penalty
The death penalty is also identified by OCR as a controversial law and morality issue.
It demonstrates that moral disagreement may concern not only the conduct being regulated but also the response of the legal system itself.
Different moral values can support competing arguments about:
punishment;
protection;
state power;
individual rights.
The Devlin-Hart framework can therefore be used to examine whether legal policy should follow strongly held collective moral beliefs or give greater weight to the position of the individual.
Comparing Devlin and Hart
Strength of Devlin: recognises the social importance of morality
One strength of Devlin is that morality does have a social dimension.
Law operates within a society, and legal rules frequently reflect values concerning acceptable behaviour.
Devlin therefore recognises something important:
law cannot always behave as though morality is irrelevant.
OCR's law and morality content itself confirms extensive interaction between the two.
Strength of Devlin: common values can support social stability
Devlin's central argument is that shared values help prevent social disintegration.
Where moral standards are truly fundamental and widely shared, this can provide a strong reason for law to protect them.
A society arguably needs some common standards in order to function coherently.
Weakness of Devlin: identifying common morality
The obvious problem is pluralism.
If different sections of society have different moral values, it may be extremely difficult to establish what the common morality actually is.
OCR explicitly recognises this problem.
If morality is contested, enforcing a "common" morality may really mean enforcing the morality of:
the majority;
lawmakers;
judges;
another influential group.
That creates a serious challenge for Devlin.
Weakness of Devlin: morality changes
Moral attitudes can develop over time.
A legal rule which protects one era's supposedly common morality can later appear outdated.
OCR recognises this through examples such as the changing law concerning gay rights and marital rape.
This makes moral enforcement potentially unstable.
Strength of Hart: protects personal autonomy
Hart's clearest strength is his emphasis on autonomy.
Adults may reasonably believe that they should control important decisions affecting their own lives.
This is especially persuasive in areas such as:
consensual behaviour;
body modification;
other personal choices.
Hart provides a strong argument against criminalising conduct simply because other people morally disapprove of it.
Strength of Hart: works well with pluralism
Hart's approach is also attractive in a morally diverse society.
If citizens hold different moral beliefs, allowing greater personal autonomy can reduce the need for law to choose one moral position and impose it upon everyone else.
This does not eliminate the need for law.
It limits the argument that moral disapproval by itself should determine legal prohibition.
Weakness of Hart: autonomy cannot decide every case
Personal autonomy is important, but not every moral dispute involves only the individual making the choice.
Legal questions may involve:
competing interests;
protection of other people;
wider social consequences.
Therefore, simply saying "autonomy" does not solve every problem.
Even within the OCR examples, assisted suicide, consent and necessity can involve concerns which extend beyond a simple private preference.
Weakness of Hart: society may require some shared legal standards
If individual autonomy always defeated collective moral standards, it might become difficult for law to maintain any common boundaries.
Devlin's response therefore remains important:
society may need common rules and values in order to function.
The debate is difficult precisely because both positions identify legitimate concerns.
Hart is not the same as legal positivism here
You studied Hart previously in natural law and legal positivism [Natural law and legal positivism].
Do not confuse the two topics.
In legal positivism, Hart is relevant to questions about the relationship between legal validity and morality.
In the Devlin-Hart debate, the focus is:
Should law enforce morality?
For this lesson, OCR's mark schemes emphasise Hart's:
utilitarian approach;
protection of personal autonomy.
The same thinker can therefore be relevant to more than one jurisprudential question.
Devlin is not simply "morality good, Hart morality bad"
This is another dangerous oversimplification.
Hart does not argue that morality has no value.
His position gives greater weight to the individual's freedom to make choices rather than automatically allowing collective moral disapproval to justify legal coercion.
Similarly, Devlin does not simply argue that every moral preference should become a criminal offence.
The core Devlin argument identified by OCR concerns the protection of a common morality necessary to prevent social disintegration.
Keep both theories precise.
How the theories approach the same situation
Imagine that a group of consenting adults engages privately in behaviour which causes widespread moral disapproval.
No additional facts are provided.
Devlin
A Devlin-style response asks:
Does the conduct seriously conflict with society's common morality?
Is protection of that morality important to social cohesion?
If so, is legal restriction justified?
Hart
A Hart-style response asks:
Are the adults making autonomous choices?
Is law interfering because others morally disapprove?
Should personal autonomy be given greater weight?
The theories therefore produce different starting points.
Neither replaces the need to apply the actual legal rules in a substantive law question.
They are tools for Nature of Law analysis.
Devlin and Hart in a pluralist society
This is one of the strongest comparison areas.
Issue | Devlin response | Hart response |
Society contains different moral views | Some shared morality remains important to social cohesion | Moral diversity strengthens the case for respecting individual choice |
Morally controversial private behaviour | May be regulated if it threatens common morality | Autonomy weighs against restriction based merely on disapproval |
Changing morality | Law can adapt to changing common standards | Shows the danger of imposing one period's morality through law |
Social cohesion | Requires protection of common moral values | Must be balanced against individual freedom |
Legal intervention | More willing to justify enforcement | More cautious where intervention restricts autonomy |
Which approach better explains English law?
OCR does not require you to decide that English law follows only Devlin or only Hart.
Indeed, OCR assessment materials explicitly tell students to use examples of laws supporting Devlin and laws which support Hart.
That is important.
Different areas of law may reflect different balances.
Some rules may appear to favour:
common morality;
protection;
legal restriction.
Others may give greater weight to:
individual choice;
personal freedom;
autonomy.
Therefore, a strong answer can argue that the English legal system does not consistently adopt one side of the debate.
Instead, different areas illustrate an ongoing tension.
Applying both arguments to one case
A useful examination structure is:
Step 1: Identify the moral issue
For example, consent and private behaviour.
Step 2: Apply Devlin
Explain why protecting common morality could justify the legal rule.
Step 3: Apply Hart
Explain why personal autonomy could justify less interference.
Step 4: Use the case
Use Brown, Wilson, Pretty, Nicklinson or another OCR-recognised example to illustrate the tension.
Step 5: Evaluate
Which theory better explains or criticises the legal position?
Step 6: Counter
Explain why the alternative view still has force.
Step 7: Judge
Reach a supported conclusion.
That is much stronger than having one paragraph entirely on Devlin and a completely separate memorised paragraph on Hart.
Model analytical application: Brown
A developed paragraph could follow this reasoning:
Devlin's approach can be used to support restrictions on consent in Brown because he argues that law may protect a common morality which contributes to social cohesion. The criminal law can therefore impose limits even where adults consent to conduct. Hart's emphasis on personal autonomy provides the opposing argument, since adults making private voluntary choices have a strong interest in deciding for themselves. The contrast demonstrates the difficulty of deciding whether the legal restriction is genuinely protective or whether it imposes contested moral standards. In a pluralist society, Hart's position may appear stronger where moral disapproval is the main justification, although Devlin remains persuasive if the conduct is seen as threatening values sufficiently important to justify collective protection.
Notice how the theories are applied, not merely described.
Model analytical application: assisted suicide
A second paragraph could argue:
Assisted suicide demonstrates a similar conflict. OCR identifies Pretty and Nicklinson as relevant examples of law and morality clashing. A Devlin-style argument can support legal restriction where protection of life forms part of an important shared moral framework. Hart's emphasis on autonomy, however, gives greater weight to an individual's wish to make deeply personal choices. The difficulty is that the issue can involve interests beyond individual choice, meaning autonomy alone may not settle the question. The area therefore demonstrates why neither Devlin nor Hart produces an automatic answer.
Relationship with the legal enforcement of morality
The Devlin-Hart debate gives theoretical structure to the question from the legal enforcement of morality [The legal enforcement of morality].
That earlier lesson asked:
Should law enforce morality?
Devlin gives a stronger yes, where common morality needs protection.
Hart gives a more cautious response, emphasising autonomy.
The debate therefore gives you a ready-made AO3 framework:
Devlin argument → Hart counterargument → legal example → judgement
Relationship with natural law and positivism
The Devlin-Hart debate should also be distinguished from natural law and legal positivism [Natural law and legal positivism].
Natural law and positivism primarily concern the relationship between:
legal validity;
moral value.
Devlin and Hart ask a different question:
how far law should enforce morality.
All of these theories can appear in the same 20-mark Nature of Law essay, but only if each contributes to answering the precise question.
Do not unload every theory you know into every morality answer.
Using Devlin and Hart in a 20-mark essay
OCR's Nature of Law questions allocate:
8 marks AO1
12 marks AO3
The larger weighting on AO3 means that simply explaining Devlin and Hart is not enough.
A strong paragraph should contain:
Theory
Application
Legal example
Counterargument
Mini-judgement
For example:
Devlin argues that common morality should be protected because it helps prevent social disintegration. This can support legal limits on consensual conduct, illustrated by Brown. However, Hart's emphasis on personal autonomy challenges restrictions based on moral disapproval, especially in a pluralist society where there may be no single agreed morality. The strength of Devlin therefore depends upon establishing that the moral value being protected really is sufficiently common and socially important.
That is much more valuable than a page of biographical information about the theorists.
Comparing the alternative views
Ultimately, the debate reflects two important values:
Devlin prioritises
common morality;
social cohesion;
collective standards;
justification for legal enforcement.
Hart prioritises
personal autonomy;
individual choice;
caution about imposing contested morality;
greater limits upon moral enforcement.
Neither consideration can simply be ignored.
A legal system needs shared rules, but it also regulates individuals with different values and beliefs.
That is why the debate remains useful when analysing law in a pluralist society.
Overall assessment
Devlin offers a powerful argument where a moral value is genuinely shared and fundamental to maintaining social cohesion.
However, the argument becomes harder to apply where:
society is morally divided;
values change rapidly;
the conduct concerns private autonomous decisions.
Hart's emphasis on personal autonomy appears particularly strong in these circumstances.
On the other hand, autonomy cannot automatically defeat every collective interest. Some areas of law involve protection, competing rights or wider consequences.
The strongest conclusion is therefore usually context-dependent.
The value of the Devlin-Hart debate is not that one thinker supplies the answer to every moral controversy. It provides two competing principles which allow students to analyse why law intervenes, whether intervention is justified, and what may be lost if either social morality or individual autonomy is given too much weight.
This prepares directly for evaluating law and morality [Evaluating law and morality].
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Common morality | Shared moral values which Devlin argues help hold society together. | Use when explaining why Devlin supports some legal enforcement of morality. |
Personal autonomy | An individual's ability to make choices about their own life. | Use when explaining Hart's objection to excessive legal interference. |
Devlin | The thinker associated by OCR with using law to uphold common morality so society does not disintegrate. | Apply his argument to laws which restrict conduct in order to protect collective moral standards. |
Hart | The thinker associated by OCR with a utilitarian approach and the central importance of personal autonomy. | Apply his approach when arguing for greater individual choice and less moral interference. |
Pluralism | The existence of diverse moral values within the same society. | Use to evaluate whether Devlin's idea of a single common morality can realistically be identified. |
Hints from the Examiner Reports 💡
Examiner hint: Do not name theorists without explaining them. OCR's 2022 examiner report states that there was no credit for simply naming a key thinker. The thinker must be used to explain the relevant approach.
Examiner hint: Apply theories to areas from your course. OCR found that candidates who gave lengthy explanations of morality theories without connecting them to legal examples were unlikely to progress beyond Level 2.
Examiner hint: The best answers combine theorists and cases. In 2023, OCR praised candidates who used both theory and examples such as Brown, Wilson and Re A to construct their arguments.
Examiner hint: Stay focused on the precise wording. OCR's 2023 report found that prepared morality essays which were not adapted to the multicultural context scored less highly than responsive, balanced answers.
Examiner hint: Balance both sides before reaching a conclusion. OCR's 2023 report identifies balanced arguments which evaluated both sides of a debate as a characteristic of stronger responses.
Examiner hint: A case should demonstrate an analytical point. OCR's 2022 report advises students to link cases clearly to the concept being discussed rather than simply list case names.
Common Mistakes ⚠️
Mistake: Saying Devlin believes every immoral act should automatically be criminal
Why this is incorrect: OCR frames Devlin's argument around the protection of common morality and preventing society from disintegrating, not the automatic criminalisation of every moral wrong.
How to improve: Connect Devlin to social cohesion and shared moral standards.
Mistake: Saying Hart believes people should always be allowed to do whatever they want
Why this is incorrect: OCR identifies Hart's emphasis on personal autonomy, not an unlimited rule that individual preference always wins.
How to improve: Use autonomy as an argument to be balanced against other legal interests rather than as an automatic answer.
Mistake: Confusing Hart's position here with legal positivism
Why this is incorrect: The Devlin-Hart debate concerns legal enforcement of morality. Positivism concerns the relationship between legal validity and moral value.
How to improve: Ask which question you are answering before using Hart.
Mistake: Explaining Devlin and Hart without applying them
Why this is incorrect: The OCR specification expressly requires students to apply the main arguments to specific areas and cases.
How to improve: After each theory, use an example such as consent, Brown, Wilson, assisted suicide or Re A.
Mistake: Treating pluralism as irrelevant to Devlin
Why this is incorrect: Devlin's idea of common morality becomes more difficult to apply when society contains diverse moral standards.
How to improve: Ask whether a genuinely common morality exists before arguing that the law should enforce it.
Mistake: Assuming a case proves either Devlin or Hart is correct
Why this is incorrect: Cases illustrate how the competing arguments can be applied. They do not prove a philosophical theory universally correct.
How to improve: Use cases to test and compare the arguments.
Mistake: Retelling the facts of Brown, Wilson or Pretty for an entire paragraph
Why this is incorrect: Nature of Law requires analysis and evaluation, not lengthy substantive-law description.
How to improve: Give only enough legal context to make the theoretical point, then analyse Devlin against Hart.
Mistake: Giving a one-sided conclusion
Why this is incorrect: OCR examiner reports repeatedly identify balanced reasoning as a feature of stronger answers.
How to improve: Explain the strongest feature and limitation of both theories before deciding which is more persuasive in the particular context.
Exam-Style Questions ✍️
Question 1
Identify the moral concept which Devlin argues the law may protect. (1 mark)
Question 2
Explain what OCR means by Hart's emphasis on personal autonomy. (3 marks)
Question 3
Explain the central difference between Devlin and Hart concerning the legal enforcement of morality. (4 marks)
Question 4
Explain why pluralism creates a difficulty for Devlin's argument. (4 marks)
Question 5
Explain how R v Brown can be used to compare Devlin's and Hart's approaches to morality. (6 marks)
Question 6
A law prohibits private consensual conduct between adults because the conduct is regarded by much of society as morally unacceptable.
Apply Devlin's and Hart's approaches to the proposed law. (8 marks)
Question 7
Explain how the competing views of Devlin and Hart could be applied to the law relating to assisted suicide. (8 marks)
Question 8
'Hart's emphasis on personal autonomy provides a better basis for law making in a pluralist society than Devlin's idea of common morality.'
Discuss the extent to which you agree. (20 marks)
Use examples from your full course of study.
Answers and Indicative Mark Scheme
Question 1
Common morality. (1 mark)
Question 2
Award up to 3 marks for explaining that:
autonomy concerns individual choice;
Hart gives this choice central importance;
the approach therefore provides an argument against excessive legal interference with personal decisions.
Question 3
Award up to 4 marks for explaining that:
Devlin supports law protecting a common morality;
shared morality is important because it contributes to social cohesion;
Hart gives greater weight to personal autonomy;
Hart's approach therefore provides a stronger argument against imposing disputed moral standards through law.
Question 4
Award up to 4 marks for explaining that:
pluralist societies contain different moral standards;
there may therefore be no single moral view shared by everyone;
this makes "common morality" difficult to identify;
enforcing one view may impose the morality of one section of society upon another.
Question 5
Award up to 6 marks for explaining that:
Brown concerns limitations on consent and is identified by OCR as a useful morally controversial example;
Devlin can support legal limits where common morality requires protection;
the restriction may be defended as reinforcing important collective standards;
Hart places greater weight upon the autonomy of consenting adults;
this creates an argument against intervention based substantially upon moral disapproval;
the case can therefore illustrate the tension between common morality and personal autonomy.
Question 6
Award up to 8 marks for developed application.
Devlin:
society may possess a common morality;
shared morality helps maintain social cohesion;
law may therefore protect that morality;
widespread moral opposition can support the case for legal intervention.
Hart:
the conduct involves consenting adults;
personal autonomy is therefore highly relevant;
moral disapproval does not automatically justify legal interference;
in a pluralist society the supposedly shared moral view may itself be contested.
Higher marks require comparison and a supported judgement rather than two separate descriptions.
Question 7
Award up to 8 marks for developed application including:
Devlin:
law may protect values regarded as fundamental to society;
protection of life can be analysed as a shared moral concern;
this can support legal restriction.
Hart:
autonomy gives weight to an individual's own choices;
deeply personal decisions provide a strong context for autonomy arguments;
moral disagreement in a pluralist society challenges enforcement of one position.
Credit use of OCR-recognised examples such as Pretty or Nicklinson.
A strong response should recognise that competing interests mean neither theory necessarily produces an automatic answer.
Question 8
20 marks: AO1 8 marks, AO3 12 marks
Indicative content may include:
Knowledge and understanding:
distinction between law and morality;
legal enforcement of moral values;
pluralism;
meaning of common morality;
Devlin's desire for law to uphold common morality so that society does not disintegrate;
Hart's utilitarian approach;
Hart's emphasis on personal autonomy;
changing morality;
relevant areas identified by OCR, such as sexuality and consent, drug legalisation, assisted suicide, body modification, necessity and homicide;
cases such as Brown, Wilson, Pretty, Nicklinson and Re A.
Arguments supporting Hart:
pluralism makes one common morality difficult to identify;
individuals in a diverse society hold competing moral values;
autonomy reduces the danger of imposing majority morality upon minorities;
consensual private conduct provides a strong argument for individual choice;
changing moral attitudes demonstrate the danger of enforcing one period's moral standards;
Brown and Wilson can be used to analyse the tension between legal restriction and personal choice;
assisted-suicide debates can similarly illustrate autonomy arguments.
Arguments supporting Devlin:
every functioning society may require some common values;
law cannot ignore morality entirely;
shared moral standards can contribute to social cohesion;
some collective values may be sufficiently important to justify legal protection;
complete reliance upon autonomy may fail to account for wider social interests or the interests of others;
law inevitably establishes some common boundaries even within a pluralist society.
Evaluation:
A strong response should question whether a sufficiently identifiable common morality exists in a diverse society. If it does not, Hart's emphasis on autonomy may provide a more workable principle because it avoids enforcing disputed standards merely because they are morally popular.
However, Hart's approach should not be presented as unlimited personal freedom. Some issues involve wider interests which may justify restriction, meaning Devlin's concern with collective values cannot be dismissed completely.
Judgement:
A supported conclusion could find that Hart's emphasis on personal autonomy is generally more persuasive where the issue concerns private, voluntary conduct in a morally diverse society. Devlin becomes more persuasive where the moral value in question is genuinely shared and closely connected to the protection or cohesion of society.
The strongest answer will therefore avoid declaring either thinker universally correct. Instead, it will use the debate to assess when collective moral standards provide a sufficient justification for legal intervention and when individual autonomy should prevail.
OCR examiner guidance strongly supports this approach: successful Nature of Law responses use relevant theories together with appropriate legal examples, develop both sides of the debate and remain focused on the exact context of the question.
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