Polygamy – the practice of being married to more than one person – is illegal in Canada, though it is rarely prosecuted. This law seems to be based on out society's unreflective common morals, rather than on rational arguments about the harm it does. The following will examine whether polygamy should be illegal, and in doing so, the moral theories of Patrick Devlin and Ronald Dworkin will be consulted. From this it will be argued that polygamy should be legalized as it falls within the sphere of toleration as it would not cause society to disintegrate.
Polygamy is a contentious issue in our society, as it is something that seems to go against our ideas of morality, but perhaps we are not entirely sure why, and it does not really cause any harm, and the people that tae part in it do so voluntarily (in theory anyway).
According to Devlin (1965: 12-13):
I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.
[...] He said the law should be used to “punish men for doing what morally it is wrong for them to do, but it should be so used; for the promotion of moral virtue by these means and by others is one of the ends or purposes of a society complex enough to have developed a legal system.” (Hart, 1983: 248). Hart was writing in response to the work of Devlin who was responding to the government report that was released which called for the legalization of homosexual activity between those who were consenting. [...]
[...] What would have if polygamy were allowed to flourish in this country? Would the continued growth of polygamy be underwritten by a moral right? Dworkin attempts to deal with Devlin's thesis by saying that he misidentifies the root of a moral argument. Dworkin says that we do not argue morally. Arguments are typically based on prejudgments, and rationalizations as much as emotion. Therefore, Dworkin's argument is that emotional responses cannot be moral responses. It is also pointed out that Devlin highlights the emotion of disgust, which is an emotion that is highly susceptible to misrepresentation. [...]
[...] The law must do what it can to protect a certain level of morality within society, and to Devlin, this would include not allowing the morally defunct practice of allowing polygamy to exist. The problem with Devlin's argument is that the bonds of common thought are not the same in all societies. While societies in North America tend to abhor polygamy, there are others that find it to be a respectable social practice. In this way, both polygamy and monogamy can partially count as invisible bonds of common thought depending on the society in question. [...]
[...] There might be a certain level of disgust associated with the idea of polygamy, but upon granting it sober second thought, it can be seen that it is an act that takes place between consenting individuals and does not do additional harm to society apart from disgusting some individuals. So as long as the participants in polygamy were consensual, society would not crumble if polygamy were legalized. The issue of polygamy is surely a contentious one as there are people who feel strongly about the different sides of the argument. However, upon an examination of the theories of legal moralism of Devlin and Dworkin, it can be argued that [...]
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