Law, Liberty, and Morality

I 'he Legal Enforcement of Morality, I onspiracy to Corrupt Public Morals, 6 Prostitution alid Homosexuality, 13 ositive and Critical Morality, 17

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. ..)use of Examples, 25

Ihe Use ar alism and r nforcemcnt of Morality, 3 The Moral Gradation of Punishment, 34 Private Immorality and Public Indecency, 38 The Moderate and the Extreme Thr~is. AR

Populism and Democrac

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of this book to make somt thc point and 1 of the book wherc I thlok &IS &ay have been m~sunderstoc some of my critics, and to reply to m u major criticism ur bv Lord Dcvlm. I also add a list of the more unoortant illuminating publications concerned with drc main argument the book.

I The threc lceturcs w h i i fmm tkis bDdr wcrc given at Sta University in 1962,and like mny two mr2Lr article?+ lmmornI11~ urrt Treason (Lrrrmrr, I.& and TAr Use and A b u e of the Crrmzna Law (Oxfard Lnwyn, 1+t) they were intarded as a contributio~ to the public discusion in E q l a n d of &e proper scope of th criminal law whicb had bccn stimulrtcd by tbc publication in 1959 of the rcpoa of the CoaLmitrce on Hbmnsaual Offences and Prostitution (Thc Woifcndm Thir qmrt had recommended the removal of &mind xnmnioua from homosexual practices between consenting ndulte in piivate on the ground that wen if such practices arc d d d y hdd to be immornl something more than this must be &awn to justify tk w B( the criminal law: the control of conduct merely becaurc kt was immoral according to accepted standadr of a sockty was nof tbe law's business. The argument ueed by the Wolfcnden Commitae was attadred by Lord Dcvlin, then a Lord nf Appeal in Ordinary and widely regarded as a lawya of great distinctinn, in his Maccabcan lecture t British Acadcmy in 1959, on the E n ~ c c m c o tof Morals, sequendy included w11h o t h a casays in his book of that published in 1965. His central argument was that a society's morality was as nweaary to its existence as a raognized governmen

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and thc justification f a its cnforeemcnt by law war simply &at the law might be used 16 preserve anything cswntial to society's aiti t e a . hDevlii &d an anal& k c e n immorality-in the x n x of the infringement of a society's shared moral codc-and ucasw, and argued that the suppression of such immorality was E much the law's business, and justifiable on the same grounds, ~e suppression of subversive activities. It is important for the understanding of &is book to ?,:$*~ ., lat its argurncnrs are mainly of a nebtiye character designed m :,.leet the s p i f i c u s e presented by b y d Dcvlin to justify .the up ,:,.:; $i f the criminal law to wanish deviations from a society's s h a d .',. morality. I endcawural to make this plrin by drawing a distinction between the "positive" rtrmally shnrcd morality of a society and a "critical" morality and I empherivd &at tbe c r u d issue between Lord Devlin and myself was the sigaificDKe to be attached to the bare fact that conduct, no mam what, was ptoh~bitedby a society's positive morality. Some of my c r h have taken me to task for * ~ k i u go v a from LMd h I ' i & faulty and misleading detinition f morality. Tbcy would deny that the facr &at standards of conduct re widcly shared in a partidar society and mnngly supported y feellngs of "intotrance inblgnath and d i s p t " ( w h i i are the narks for Lord Devlm of thc morabty which the law may enforce) lough to warrant the deaription of [hoar mndards as "moral~ty". criticr also complain that I have Eiilad in thh to enquire (hat case there could be, on some mwc ntistxtory definition of norality, for cnfarcing its r q u i r e a m m . That criticisms certainly ~ointto important issues but I am miti &at the kind of case ~rguedby Lord Dcvlin Lo onc &i& has a s m n g prmn foci2 1 to many ordinary men and w m who both conceive of the ntional morality which they s b a v~ ~ mu& y ol he does, and egard it, as ha does, ar "the invijbEc bond'" which holds society ogether. Moreover, as I tried to show in my lnta essay, Sonal lrdarrty and thr Enforcement of M d i y (UnivnsiEy of Chicago w Revicw, 1967) t h a t is a sbiking similarity between these v~ewsand thc widely influential sociological theories of Emile Durkheim and Talcott Parwns. I thnugbt therefore that such views were sufEciiudy important to deserve detailed scrutiny on

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I1 o challenging the main l i n a of Lord Deu his reliance on cemin pruv ish law as evidence that the law does attempt to enforce ". In particular I argued that the provisi~LL ,\, the victim's consent is not a defence to a cksj liberate assault, which Lord Devlin cited as. the legal enforcement of morals, could be explaii e of legal paternalism: the use of the law to prevehi arming himself or effectively consenting to others h*mi recognized that John Stuart Mill would not have thou? dmissible and I criticized Mill for a too absolute and dogma 'ection of paternalism, due to excessive confidence in the be1 at adult individuals always knew their own interests best a qercion-of an individual in his own interest is always fut rd Devlin's reply to my distinction between the enforceml lsitive morality and paternalism is contained in Essay on Mot nd Contempwary Social Morolity included in his hook and i link the most important of all his criticisms of my book. H e atg lat the admission of any form of paternalism as a proper functi f the criminal law cannot consistently stop short with what :rms "physical paternalism" or "the control of a person's physi relfare". Once, parernalism is admitted it must be extended aternalism in matters of morals ("moral paternalism"), h e font F a person's moral welfare to protect him from moral harm, a iis is indistinguishable from the use of the criminal law to enfw dispute in this book

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nm-bicycle M a scat belt in a a r and ro is saved from in, or death It is 1 think quite unclear why facing a i u n a v threat of legal puultier to crmfarm to motal r e q u k -say UI ta his sexual coadu-d k rrJIYdat an r m u i u g Lul. ,~,mwelfare or a good of any kind. This is a serious question however morality is defined; but it is especially serious if the morality in question is identified as simply the widely and strongly supported conventions of a particular society. Is the bare fact that a man deviates from any accepted moral code, which is what in this context Lord Devlin means by morality, to count just in itself as some kind of harm to him? It would he extraordinary to think of a black South African man who rcfuaed m comply with a moral :ode of apartheid, or an Indian w a n i n Rfuaing to comply with suttee when that was rrgardd rs ha moral JUT, as thereby "morally" harming them.dves, and the m c of course applies to homosexuals where the prevding s d mordity prohibits that form of sexual activity. Surely if "mom1 tarelfarc" and "moral harm" have any meaning a d are not ma+ arbitrarily used as vms for confnnnity to and deviation from D sacial morality, must bc some uiteriwi of the "hum" which is independent : (alleged) immorality of cwduct If Jlnr is nor, t h a e is no rrgument that, in consistuucg, those who naepa '"hysical parernalism" must accept the enfmmnent of sDciPl morality as securing nord welfarc a p v e n t i n g the moral harm of the agent.

rhere are ,however two passages where careless writing on my )art may have encouraged some misundastandings. On page 4 of mk I offered three diffaent formulations of the question with I it was concerned. Is the fact that certain conduct is by ;om:

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without the inclusion of these words the three questions are not equivalent. I hope however that my insistence that the distinction I draw between positive and critiul morality, and my statement on p g c m that the question with zarhid~rk bo$a is macaned is one abmt the legal eafonrmcnt ef , p i & t n morality, may have made my intentions clern to most readers. I have h ~ w c v eie~ &wring to John Stuart Mill similnrly failed to pobot put that while he would have rejected 'Lord D ~ i i n \argu-

Mar& 4 8 1 SELEC-

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Brown, D. G. "Mill o rrty ar relity," Philosophical R e u i e ~ '972, p. 133. Dworkin, R. M. ?Lord Devlin and the Enforcement of Morals,'"

1973,

P. 591.

Ten, C. L.."Crimeand Immorality," Modern Imw Review,

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f-cr question. T h e x exhibit the manifold ways in which ' morality has determined the course of the law, somaimcs covcrtly and slowly through the iudicial proceys, sometimes q~cnlyand abruptly through legislation. I shall say , nomore here about this historical causal question, cxcept ':toutter the warning that the affirmative answer which may ,:$ be given to it, and to its converse, docs not mean that an 8.

vcy whcn hr .-xp~csriom r" or "kgal system"? Or should it n toprmu . ;marking off cntain social phenomena from others, a classifificmion wful or illuminating for theoretical purposes? A third question concerns- t . d .. af the moral cnhcl.gm.11g law open to moral c cism? Or d m the admissian the n rule is a valid ltx.+r ~ l preclude e moral crirk&~+w

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The second question may be called

m k Yet in our their common proscription of certain forms of violence and dishonesty) and that they share a common vocabulary of rights, obligations, and duties? These are famous q u m

dktion in zwh an by the speaker of hi

ingly so. The first is that the issue has been clouded by

a loud but often confused debate. Secondly, amid the shouting, too little has been said about the criteria for judging the adequacy of adefinition of law. Should such a drfi-

a1 critique of Social institutions is in

and indeed inconsistent, grou~ids.Some critics have ur :

------. ay On --~~-..Libert~ -onc hundred yeas in wkkh be frames this an-

On Liberty, Chapter I.

16id.

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Vpith which the I a n map-interfere and those with whic

dogmaticon Mill's pa djt, crirics cI&q

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cepted morality needs no argument to justify it, bePIiP .-tl;ll..R it. .- But Mill's.cri,tics l&&st i;a morality which . . .-*,is cnfmced. -..+ back upon this brute assertion. They have in vanced many different arguments to justify the ment of morality, but these all, as I shall attempt tosho rest on unwarranted assumptions as to matters of fa .on certain evaluations whose plausibility, due in la measure to ambiguity or vagueness or inaccuracy of sta ment, dwindles (even if it does not altogether vanis when exposed to critical scrutiny.

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rirhich we are all vastly disturbed. But whatever its cause, h i s mowmat of judicial apinCon has goot Ear. h t y t a 'xlhc House of Lords in the c a s e d $&w v. Dkcciw of -*.-

,,&dges in Shaw's case invoked in their speeches. CONSPIRACY TO COURUFT PUBLIC MORALS

In England in the last few years the question -whether - ~ .criminal . law should b, u s e d topunish - . - - , - ~ -immorality "as the such" -.-. .- has acquired a new practical importance; for there' has, I think, been a revival there of what might.be termed lfgal rnwalkez. . ... ., Judges both in their judicial capacity and in extra-judicial statements have gone out of their way to express the view that the enforcement of sexual morality is a proper part*e law's business-as much its business, so one judge has argued, as the suppression of treason. It is not clear what has provoked this resurgence of legal moralism: there must have been many factors at work, and 'mong them, perhaps, has been the idea that a general stiffening of the sanctions attached to any form of immorality may be one way to meet the general increase in crime by A..

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lish House of Lords represented as a new developmen Americans are accustomed, as the English are not, t

bsured that, in California at least, the provision mak

be regarded as a dead letter. This 1s now nor so wltn

English, and both the use actually made of the lau Shaw's case and the future usc envisaged for it by the House of Lords are worth d e n h . The facts ia Shaw'r .*ire uz nut such as to excite symhad done was to compathyfortbracc

and m indication

itutes, in u@ncaucl d

an obscene

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h n r * ~ pnfcrrd the in tfiE Hlmc d Lords af the charge bot wirh one dissentient

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ztianhshiraarm ~dimktdthatt I.

Thcy lnecle

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udges, into t,kwca ot p l k q hi Dndct to empSrasise this.

rarca perm iaw one or t

judg

AM S~monds),a

Cham,, .lad been abol&hed &id th;lt the Court of .King's Bench was the ~ d morwn o ~of the people and had the superintendency of offences contra bonos mores, he was asserting, ag I now assert, that there is in that Court a residual p e r , where no mate has yet intervened to supcrscde the mm law, to superintend those offenm which me pwjudicid to the public welfare. Such &s will be rare, for Parliament has lot been slow to legidate when aaenrion Bas been sufiiently a& But gaps &urd wit1 always renain, si~mno one ran &eweq way in which tl .vickednw d m m may disrupt the ordm of society. Let me take a &Ie iaaums . ..kt it be supposed that at borne Eunur, p hp early, rkte homosexual practices between a&& conseclringmales are no longer crime. Would it BM bc aa oBexxx if even without bscenity mch were publidp advocated and waged by p ~ l l p h kand adv-ent? Or must sait till Ptsliemmt finds time to deal with su-h onduct? I say, my fmrcls, t l u i if the common law rowerless in such an rvcnt then we should no longer do her revcrcncc. But I say that h a hand is still powerful and that it is foi her Majesty's Judges to play the part which Lxud M d l d painted out to them.' Shaw v. Director of Public Prosecutions (1961) 2 A. 52-53. (1962) A.C. at p. 268.

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Lady Chattcrlcy r L

or learning shall uc on, ~ I I Uu i t is paved that on these gmwm licatimbjustified as being for the public g 4 . m a h - , ~undcrtbrsstatuteis committed. Evidence as to these merits

r dictum. But the il mu& of it as tht H o u a o t ~ o r d to s the exceedingly t q of cormpting&&sF morals h;

the House of Lords approved in this case tha ' ,

xian's opponent, who insists that it is morally permissible 3 enforce morality as such, believes that the mere fact that eitain rules or standards of behaviour enjoy the status of ,ty's positive morality is the reason--or at least part r LIIC reason-which justifies their enforcement by law To doubt in older controversies the oppsedpositions were ifferent: the question may have been whether the statc punish only activities causing secular harm or alsc : disobedience to what were believed to be divinc

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e uccn convicted in Los hnge~csunder a local ncc of the offence commonly known as Urcsorting," b

English eyes. For in additio ishablc under English law, not w a l l y break down figures for sex crimes furthe]

rious, or continuous. Fornication is not a criminal offence in England or in most countries of the civilized world, statbut only a minority of American states do not utes making fornication under certain conditions pi%&&some states make even a single act punishable.'

sceive "normal" enforcement, a ~ in d 1948 there we, rrests for adultery in that city." No one, I think, sl.,. contemplate this situation with complacency, for in com. bination with inadequate published statistics the existence of criminal laws which are generally not enforced place! ~rmidablediscriminatory powers in the hands of the police and prosecuting authorities.

quantity of local or municipal enactments which, in some "irew doubt on his claim that the criminal law should n

'I% we Supreme Court in December 1961 heid the ordi. nance mkr: la contlict with the state laws and void. See in re CQro

NO. 4, p. 205, n. 16.

d eriminal law discussed at length by these writers, it is m a 1 morals, and certainly many, who would wish to

damental principles of English law as it exists today?

they are theoretically unsound. But to see how

.';principlethat would condemn these particular rules could "be right. But there are, I think, good reasons for disputing :!:thesewriters' treatment of these rules as examples of the .-rise of the law solely to enforce morality. We are not nforcrmcnt -'"?raIi, p. 7 .

the principle that the criminal law may be used for tk., purport. Same dowr analysis than these authors give to these cxamplcr is, tun

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statement that "there is omy one y not true. The rules excluding the victim's c u ~ ~ s a l t efence to charges of murder or assault may perfectly ,-.;$, veil be explained as a piece of paternalism, designed to , jrotect individuals against themselves. Mill no doubt '" :ht have protested ag9inst a paternalistic policy of using :( ne law to protect even a consenting victim from bodil: . ..:! (arm nearly as much as he protested against laws use( nerely to enforce positive morality; but this does not Meal hatthese two policies are identical. Indeed, Mill himself vas very well aware of the difference between them: for zondemning interference with individual liberty except ,prevent harm to others he mentions par ate types of ladequate ground which have been proffered for the use ~pulsion.He distinguishes "b8tause it will ,.A

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that g m t slQial r h d like Burkc and Hegel, who were imong tb- most anxious to defend tbc value of the positive ~ n l i t yand customs of partkdar JQcicties against

:conditions of their lives. To use cocrci%%,m -------

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moral statur quo at any point in a society's history

ment in the single sentence which I devote to it here. outline, it is the doctrine that the history of human sc eties is a process by whieh the Absolute Spirit manifitself and that each stage in this development is a ratio& or even a logical step and so a thing of value. particular case may be, it is yet there for rational CI m, acceptance or rejection; it prevents the as& of the

iods and the great importance which Mill attached to ty meant that men must never express any convictions

"the state or the public" is not warranted "for the pur-

concerning such conduct or "the experiments:in liva ployed in its support. It should, however, be th-t

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wHch it reprucnts "no one else has anything to say 1". Nor did he think that society could "dnw a lime :re education ends and perfect moral indifference bcgns."" In making these ill-founded criticisms Stephen not resenied Mill, but he ,wed how narrowly he himself conceived of morality , a~d the proce~~es by whkh it is sustained. For Mill's am.'$ cern throughout his may ie to restrict the use of cocrch, not to promats masl hd&rencc. It is m e he includes in the coercion or *mnsaaierwof which he dhppmves not '

think that M U hm coma periIons1y atu to sanctioning coercion even thaugh he regs& these" thin@ as "'strictly inseparable from the anfa-& judgments of ~ s ' ' ' ~ and never to be ia&t~dh the rPkC d p ~Bul t

such as moral blame and dcit is a dimstrous misunderwe cannot uw we mwt be d&tand indifferent. other resourcm w,&h wc have and h 1 d ust: It would k a @cat h d e r s t a n d i a g of this doctline to suppose &at it is one of selfish indifkrence which preten&tbpt b a n beings have no business with each othcn candact in life and that they abould not concun themsclva abwt the well-doing or well-being of one . Huanother unless theis own interest is hvolved. man beings e m to each other help to distinguish the better from t-hc.~azrseand encouragement to choose the former and avoid the latter.

raq in A m d a , was a pow& plea fa- a clearheaded 3ppreciation of the dangem tbat acnampmp the benefit!

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power to oppress a minority, but that, with the spread of^ democratic idcad, it might come to be thought unobjec-

Liberq, Eqw&. Fracmiry, p. 141.

On Likty,Chrptcr 4.

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worth paying; but he was much concerned to remind the

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It seems fatally easy to believe that lovaltv to d e m d w e r individuals loses none of ita importance when the holders of power arc regularly a m t a b l e to the community-that is to the Jtrongeu party therein."" So insistent waa Mill an this theme that, as Morley said, hi$ ;say war in a senn: " m e of the most aristocratic books that ever w a s wrkKhUPI Certainly Mill's doctrine contrasts very sharpi~with the emphasis placed by Stephen bn'the impwclrtcr in m~m1 maal public opinion, and on the function of @merit as an "expression of the moral senthat of the public." Marley indeed said, as :ephen tells u, in his P r c h : that whut Mill would protect the r n i n d y fmm couckn by the majority, Stephen's principle would Stephen npudiutcd Mralcg's charge, and it was perhaps

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the confusion on which it rests.The central misrake is a fad' urr to distinguish the ac-

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On Lie,C h a w I . Q u in the ~ PIEfPceto Liberty, E q a d i y , Fnremniry, F 21 ibid., p. x ~ i i . lo

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mining how far in will go in tlre direction of the law as hc thinks i t ought to be." Lord Devlin's main concern in this essay is to estab

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tectcd to some cxknt from

lust hatmfuI--form of rufe

of Parliament has been considered to be the represtntativc the actual working of democracy many forces likely to

encourage the helief that the principle of democratic rule :

high-minded politidan may rn to 3ery in office, and a pliant or passiveattitwit m what the msjoriry thinks right makes this asim than a stem a&rdic to che theory that

n elected i him. But what is understandabk a a ~ m p t a d o to

Inrtcad I shall s-ay a word in conduoion about the method of argument which I have fol1,owed. I have from the be-

inflict the misery of punishment on s which 'kcmto belong to the prc-

has bcat no victim to be avenged infliction of puni&ment as a sym-

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m milering and to ~ P Vshawn C what ;*

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$ELECTED BIBLIOGRAPH' OENEML

h& Lo , rd. Tk EXfmment of I(awf8Maccabaem . b ttne in fuhpdeace. af EtVk B~irj& Academyp I%- @.& bold: OxEard Uniwaaity Prm2rggp. "Law, nt:moaxy, and Marality," IIO Pcnarykttirr fmw Rooirv 635 (I+). Hart, H. L A. "Immorality ad Trewn," T&eLricrtg 30, 19B2 p. 162. -. "The Use and Abux of the Criminal Law,"-4 I Lawyer 7 (1941). Zughes, Graham. "Morals and the Criminal .Law: 79 Yrrlt Law Ioumd66a (1962). Mill, John Stuart. On Liberty. Landon, z%v. aw lournal 174 (I@). iephen, Jamcs Fitzjamcs. Librrty, Equality, Fraternity. ' ~ 3 don, 1873. The Preface to the wond edition of 1874.i~:ply to Morley'r defehce of Mill i n ' " ~ rMill's . Doctril A r t y , " c"=..(wigltflyReview, August I, 1873.