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Legal moralism and polygamy

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  1. Introduction
  2. The practice of Polygamy
  3. Polygamy in legal terms
  4. The role of morals in the law
  5. Devlin's argument of Polygamy
  6. Conclusion
  7. Reference list

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. [...]

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