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LAW, LIBERTY,

and

MORALITY

HARRY CAMP LECTURES AT STANFORD UNIVERSITY

TliE

1962

r

LAW, LIBERTY AND

MORALITY H.

L

A. Hart

STANFORD UNIVERSITY PRESS

Stanford University Press Stanford, California

© 1963 by the Board of Trustees of the Leland Stanford Junior University Printed in the United States of America

Cloth

Paper

ISBN 0-8047-0153-9 ISBN 0-8047-0154-7

First published

1963

Last figure below indicates year of this printing:

79

78

77

76

75

THE HARRY CAMP LECTURES The Harry Camp Memorial Fund was established in 1959 to make possible a

continuing

series of lectures at

Stanford University on topics bearing on the dignity and worth of the

human

individual.

r

CONTENTS \ I

The Legal Enforcement

of Morality,

i

Conspiracy to Corrupt Public Morals, 6 Prostitution Positive

and Homosexuality, 13

and

Critical Morality, 17

II

The Use and Abuse

of Examples, 25

Paternalism and the Enforcement of Morality, 30

The Moral Gradation

of Punishment, 34

Private Immorality and Public Indecency, 38

The Moderate and

the

Extreme Thesis, 48

III

Varieties of Enforcement, 53

Retribution and Denunciation, 60

The

Preservation of Morality and Moral Conservatism, 69

Moral Populism and Democracy, 77 Conclusion,

81.

Selected Bibliography, 85

Index, 87

I

THE LEGAL ENFORCEMENT OF MORALITY These

lectures are concerned

relations

with one question about the

between law and morals.

say, advisedly,

I

"one

question," because in the heat of the controversy often gen-

erated it

is

when law and morals

are

mentioned in conjunction,

often overlooked that there

concerning their relations but

is

not just one question

many

different questions

needing quite separate consideration. So

I

shall start

by

distinguishing four such questions and identifying the one

with which

The

I

shall be here concerned.

first is a historical

and

a causal question:

Has

development of the law been influenced by morals

answer this

to this question plainly

does not

mean

that

is

?

the

The

"Yes" though of course ;

an affirmative answer

be given to the converse question: of morality been influenced by law

Has ?

may

not also

the development

This

latter

question

has scarcely been adequately investigated yet, but there are

now many

admirable American and English studies of the

former question. These exhibit the manifold ways in which

morahty has determined the course of the law, sometimes covertly

and slowly through the

times openly and abruptly through legislation.

no more here about to utter the

be given to affirmative

warning and

it,

answer

some-

judicial process, I

shall say

this historical causal question, except

that the affirmative

answer which may

mean

converse, does not

that an

to

its

is

to be given to other quite different

questions about the relations of law and morals.

The second nitional one.

question

may be called an analytical

Must some

reference to morality enter into

an adequate definition of law or legal system a contingent fact that

or defi-

?

Or

is it

law and morals often overlap

just

(as in

common proscription of certain forms of violence and dishonesty) and that they share a common vocabulary of their

rights, obligations,

tions in the

and duties? These are famous ques-

long history of the philosophy of law, but per-

haps they are not so important

as the

ink expended upon them suggests. spired to

make

ingly

The

so.

discussion of first is

amount

Two

of time

and

things have con-

them interminable

or seem-

that the issue has been clouded by

use of grand but vague words like "Positivism" and "Natural

Law." Banners have been waved and

a loud but often confused debate.

shouting, too

little

parties

formed

in

Secondly, amid the

has been said about the criteria for judg-

ing the adequacy of a definition of law. Should such a definition state what,

if

anything, the plain

man

intends to con-

when he

vey

uses the expressions "law" or "legal system"

Or should it phenomena from rather

aim

to provide,

social

by marking

A third question concerns

?

the possibility and the forms

of the moral criticism of law.

Is

law open

cism? Or does the admission that a rule

to is

moral

Few

?

criti-

a valid legal

moral criticism or condemnation of

erence to moral standards or principles this

off certain

others, a classification useful or

illuminating for theoretical purposes

rule preclude

?

it

by

ref-

perhaps of

audience would find any contradiction or paradox in

was

the assertion that a rule of law

valid

and

yet conflicted

with some binding moral principle requiring behaviour contrary to that

own day

demanded by

the legal rule.

Kelsen^ has argued that there

diction in such an assertion, unless as

it is

is

Yet in our

a logical contra-

interpreted merely

an autobiographical statement or psychological report

by the speaker of

his divergent inclinations

the law and to disobey

Within ones.

Even

this third if

we

it

both to obey

by following the moral principle.

question there are

many

subordinate

admit, as most would, the possibility of

a moral criticism of law,

we may

ask whether there are

any forms of moral criticism which are uniquely or exclusively relevant to law.

exhaust

all

Does

the relevant forms

?

criticism in terms of Justice

Or

does "good law"

something different from and wider than ^

Hans

407-10.

Kelsen, General Theory of

Law and

"just

mean

law"?

Is

Siate, pp. 374-76,

Justice, as

Bentham seems

to

name

have thought, merely a

for the efficient distribution of UtiHty or V/elfare, or

otherwise reducible to

them ?

Plainly the

aje^a cy

of

itarianism as a moral critig[ue_of_iocial institutions

is it

Ut ilis

in

the subject of these lectures.

It

issue here._

-^The

fourth question

is

concerns the legal enforcement of morality and has been

many different ways: Is the fact conduct is by common standards immoral

formulated in tain

to justify

making

that conduct punishable by

that cersufficient

law?

Is it

morally permissible to enforce morality as such? Ought

immorality as such to be a crime ?

To

this question

John Stuart Mill gave an emphatic

On

negative answer in his essay ago, and the

famous sentence

Liberty one hundred years

in v/hich

he frames

swer expresses the central doctrine of his

"The only purpose ercised over his will

many

is

any member of a

to prevent

harm

sufficient

own good

warrant.

He

do or forbear because because

it

will

of others, to

so

community

And

On Liberty, Chapter

against

to identify the to exclude,

moral

is

he

not a

cannot rightfully be compelled to it

will be better for

tells us, is to i.

him

to

do

so,

happier, because in the opinions

would be wise or even

This doctrine, Mill ^

to others.""

said,

rightfully be ex-

either physical or

make him

do

civilised

He

essay.

which he intended

different things

added, "His

which power can

for

this an-

^

Ibid.

right.""^

apply to

human

beings

only "in the maturity of their faculties": to children or to

the object of

and indeed

backward

which Mill attempts

not to apply

so, it

on two

criticism

Some

inconsistent, grounds.

that the line

Even

societies.

much academic

it is

has been different,

have urged

critics

draw between

to

actions

may interfere and those with which illusory. "No man is an island" and in an

with which the law it

may

not

is

;

organised society

it is

impossible to identify classes of ac-

which harm no one

tions

does them. Other sion of actions

critics

may

have admitted that such a

be made, but

dogmatic on Mill's part of actions

no one but the individual who

or

which harm

insist that

it

is

divi-

merely

to limit legal coercion to the class

There are good

others.

reasons, so

mo-

these critics claim, for compelling conformity to social rality

and for punishing deviations from

do not harm I

it

even

when

these

others.

mainly in relation

shall consider this dispute

special topic of sexual morality

where

it

to the

seems prima facie

plausible that there are actions im.moral by accepted stand-

ards and yet not harmful to others.

understanding to

defend

all

be grounds

I

wish

to enter a caveat;

that Mill said

;

for

I

I

to prevent mis-

do not propose

myself think there

may

justifying the legal coercion of the individual

other than the prevention of

narrower

But

harm

issue relevant to the

Mill seems to

me

to be right. It

to assert that the legal

to others.

But on the

enforcement of morality is

of course possible simply

enforcement by society of

its

ac-

cepted morality needs no argument to justify is

which

a morality

fallen

back upon

vanced

ment rest

many

different

arguments all,

as

on unwarranted assumptions

on certain evaluations whose to

because

I

They have

in fact ad-

to justify the enforce-

shall

attempt to show^,

as to matters of fact, or

plausibility,

due in large

ambiguity or vagueness or inaccuracy of

ment, dwindles (even

when exposed

it

enforced. But Mill's critics have not

is

this brute assertion.

of morality, but these

measure

it,

if

it

state-

does not altogether vanish)

to critical scrutiny.

CONSPIRACY TO CORRUPT PUBLIC MORALS In England in the

few years the question whether

last

the criminal law should be used to punish immorality "as

such" has acquired a has,

I

new

practical importance; for there

think, been a revival there of

what might be termed

legal moralism. Judges both in their judicial capacity

in extra-judicial statements have

gone out of

their

and

way

to

express the view that the enforcement of sexual morality is

so is

a proper part of the law's business

one judge has argued,

there

this

business, It

resurgence of legal mor-

must have been many

among them, perhaps,

its

as the suppression of treason.

not clear what has provoked

alism:

— as much

factors at

work, and

has been the idea that a general

stif-

fening of the sanctions attached to any form of immorality

may

be one

way

to

meet the general increase in crime by

which we

are all vastly disturbed. But whatever

this

movement

the

House

of judicial opinion has gone far. Last year

Shaw

of Lords in the case of

Director of

v.

many had

Public Prosecutions^ conjured up, from what

thought was

its

grave the eighteenth century, the concep-

Chamber)

tion (itself a creature of the Star

spiracy to corrupt

As

cause,

its

pubhc morals"

is

a

that "a con-

common law

offence.

a result of this decision the prosecuting authorities in

England can now face

their

complex problems equipped

with Lord Mansfield's dictum of 1774 which some of the judges in Shaw's case invoked in their speeches.

Whatever ciples of

is

contra bonos mores et decorum the prin-

our laws prohibit and the King's Court as the

general censor and guardian of the public morals

bound

to restrain

Of course the penal code of California, like states of the

Union, includes in

its

that of

it

may seem

strange to

to hear the recognition of this offence

EngHsh House

of Lords represented as a

But Americans are accustomed, the inclusion

among

as the

their statutes of

by the

new development.

English are not, to

much

legal

lumber

the form of penal provisions no longer enforced, and

assured that, in California at a conspiracy to corrupt public ^ '

least,

the provision

morals a crime

(1961) 2 A.E.R. 446. (1962) A.C. 223. Jones

V.

Randall (1774). Lofft.

many

calendar of crimes a con-

and

spiracy to injure public morals,

Americans

is

and punish.^

at p. 385.

I

in

am

making

may

safely

be regarded as a dead

This

letter.

is

now

not so with the

EngHsh, and both the use actually made of the law in Shaw's case and the future use envisaged for

House

of Lords are

The

by the

worth consideration.

Shaw's case are not such

facts in

it

pathy for the accused.

as to excite

What Shaw had done was

to

sym-

com-

pose and procure the publication of a magazine called the

Ladies Directory giving the names and addresses of prostitutes, in

some

cases

nude photographs, and an indication

in code of their practices.

For

Shaw was charged and

this

found guilty of three offences: (i) publishing an obscene article, (2) living

on the earnings of the

prostitutes

who

paid for the insertion of their advertisements in the Ladies Directory,

means

(3)

conspiring to corrupt public morals by

of the Ladies Directory,

All this

may seem

a

somewhat ponderous three-handed

engine to use merely to ensure the conviction and impris-

onment

of

Shaw; but EngHsh law has always preferred the

policy of thorough.

The judges

in the

House

of Lords

not only raised no objection to the inclusion of the charge of conspiracy to corrupt public morals, but with one dissentient

(Lord Reid) they confirmed the prosecution's con-

tention that this

was an offence

and

insisted that

so.

They made indeed an

it

was

still

known

to

English law

a salutary thing that this should be

excursion, rare for English

judges, into the area of policy in order to emphasise this.

To show

the contemporary need for the

newly

resusci-

rated penal

law one of the judges (Lord Simonds), a

former Lord Chancellor, made the following remarkable statement:

When Lord

Mansfield speaking long after the Star

Chamber had been abolished said that the Court of King's Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that Court a residual power, where no statute has yet intervened to supersede the those offences

which are

common

Such occasions will be

fare.

not been slow to legislate

law, to superintend

prejudicial to the public welrare, for

when

Parliament has

attention has been

suffi-

But gaps remain and will always remain, since no one can foresee every way in which the wickedness of man may disrupt the order of society.

ciently aroused.

Let

me

take a single instance

some

.

.

.

Let

it

be supposed

homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if even without obscenity such practices were publicly advocated and encouraged by pamphlet and advertisement } Or must we wait till Parliament finds time to deal with such conduct ? I say, my Lords, that if the common law is powerless in such an event then we should no longer do her reverence. But I say that her hand is still powthat at

future, perhaps

early, date

and that it is for her Majesty's Judges to play the part which Lord Mansfield pointed out to them.'' erful

''Shaw

V.

Director of Public Prosecutions (1961) 2 A.E.R.

pp. 452-53. (1962) A.C.

at p. 268.

at

This

is

no doubt

oric in the

much

of

it

specimen of English judicial rhet-

a fine

may

baroque manner. Later judges as obiter

dismiss

dictum. But the interpretation given

by the House of Lords to the exceedingly vague and indeed obscure idea of corrupting public morals has fashioned a very formidable

For

it is

clear

House

the

in practice

would be

weapon

for punishing immorality as such.

from the form

of direction to the jury w^hich

of Lords approved in this case that

imposed by the need

to establish

no

limits are

anything which

ordinarily thought of as a "conspiracy" or as "cor-

ruption." These strong

"watered down," and the accused agreed to

words have,

all

as

Lord Reid

said,

that has to be established

do or say something which

been that

is

in the

opinion of a jury might "lead another morally astray."'

There need moreover be no approach

to the "public"

nor

need the morality in question_be "public" jn any sense other than being the generally accepted morality.

Legal writers in England have not yet worked out the relation

between

offence

and those

this vastly

statutes

comprehensive

which define

certain specific of-

fences concerned with sexual morality. But

arguable that the prosecuting authorities

themselves of this tions

imposed by

statute®

'

common

law offence

common law it is

certainly

may now

avail

to avoid the restric-

statute or statutory defences.

Thus

the

under which the publishers of D. H. Lawrence's

(1961) 2 A.E.R.

at pp. 461, 466.

(1962) A.C.

''The Obscene Publications Act 1959.

10

at p. 282.

Lady in

Lover were unsuccessfully prosecuted

Chatterley's

England

is

under the

and

and

consideration, lication

year provides that the interests of

last

ence, literature,

if it is

justified as

statute

art or learning shall be

is

sci-

taken into

proved that on these grounds pub-

being for the public good, no offence

committed. Evidence

was accordingly received

in that case.

been charged with conspiring

as to these merits

Had

the publishers

to corrupt public morals, the

literary or artistic merits of the

book would have been

irrel-

evant, and the prosecution might very well have succeeded.

In the same way, though Parliament in recent legislation

from making

has refrained

from

distinct

that

it is

case to

prostitution itself a crime, as

soliciting in a street or public place,^

open

to the

Courts under the doctrine of Shaw's

it

may

be so used has already been expressed.^^

The importance

attached by the judges in Shaw's case

to the revival of the idea that the as the custos

of the public first is

morum

Courts should function

or "the general censor and guardian

manners" may be gauged from two

that this revival

was plainly

policy; for the antique cases relied

plainly permitted, even

^

things.

a deliberate act of

upon

as precedents

under the rigorous English doc-

The

'^^

V.

seems

do what Parliament has not done. Some apprehen-

sion that

The

it

Street Offences Act 1959. Manchester Guardian, January

Monahan (1962)

W.L.R.

2

W.L.R.

262.

611.

II

31, 1962;

comment on Weisz Quinn (1961) 3

Cf. also R. v.

trine of precedent, a decision either

way.

Secondly, the

judges seemed wiUing to pay a high price in terms of the sacrifice of

lishment

other values for the establishment

—of the Courts as custos morum.

value which they sacrificed

—or re-estab-

The

particular

which

the principle of legality

is

requires criminal offences to be as precisely defined as possible, so that it

forehand what

can be

known with

As

a

any cooperative conduct

is

acts are criminal

result of

Shaw's

criminal

if

case, virtually

a jury consider

it

reasonable certainty be-

and what are

ex post facto to have been

immoral. Perhaps the nearest counterpart to ern European jurisprudence

man

statutes of the

able

if

it

is

is

not.

this in

mod-

the idea to be found in Ger-

Nazi period

that anything

is

punish-

deserving of punishment according "to the

fundamental conceptions of a penal law and sound popular feeling.""^

laid

down

So while Mill would have shuddered

would have been

horrified at

disregard of the legal values of certainty and

sion of

what he termed "ex post

Act of June

^^

Principles of the Civil Code, Part

'^^

Wor\s

its

exten-

facto law."^'^

^^

ed.]

law

in Shaw's case as authorising gross invasions of

individual liberty, Bentham^^ its

at the

28, 1935. I,

Chapter 17

(I

[Bowring

326).

Shaw's case has been

WilHams, "Conspiring

criticised

to Corrupt,"

on these grounds by Glanville

The

Listener,

August

24, 1961,

WilHams, 24 Mod. L.R. 631 (1961): "judicial folly"; D. Seaborne Davies, "The House of Lords and the Criminal Law," p.

/.

275; Hall

Soc. Public Teachers of

Law

(1961), p. 105: "an egregious per-

12

PROSTITUTION AND HOMOSEXUALITY

There are other points of

interest in

Shaw's case^JWhat

after_alUsitlQ-COxrupt morals or a morality

But

?

I

shall de-

fer further consideration of this point in order to outline

another issue which in England has recently provoked

dis-

cussion of the law's enforcement of morality and has stimulated efforts to clarify the principles at stake.

Much

dissatisfaction has for

long been

felt in

England

with the criminal law relating to both prostitution and

homosexuahty, and in 1954 the committee well the

Wolfenden Committee was appointed

known

as

to consider the

state of the law. This committee reported^* in September

1957 and topics.

recommended

As

to

certain changes in the

homosexuahty they recommended by

jority of 12 to

I

that

homosexual

senting adults in private should to

prostitution

though

it

they

should not

that public soliciting

practices

itself

no longer be

it

was an

The government

be

made

illegal,

off the streets"

a

ma-

between cona crime; as

unanimously recommended

should be passed "to drive

citizens.

law on both

that,

legislation

on the ground

offensive nuisance to ordinary

eventually introduced legisla-

It was welcomed as "an Important contribution to the development of the criminal law" by A. L. Goodhart, 77 Law. O.K.

formance."

567(1961). ^^

Report of the Committee on Homosexual Offences and Pros-

titution

(CMD

247) 1957.

13

tion'

'

to give effect to the

Committee's recommendations

concerning prostitution but not to that concerning homosexuahty, and attempts by private legislation

modifying the law on

members

to introduce

this subject

have so far

the fate of the

Wolfenden

failed.

What concerns

us here

is less

Committee's recommendations than the principles by

which

these

to those

were supported. These are strikingly similar

expounded by Mill

in his essay

On

Liberty.

Thus

section 13 of the Committee's Report reads:

[The] function [of the criminal law],

as

we

see

it, is

to

preserve public order and decency, to protect the citizen

from what

is

offensive or injurious

and

to provide suf-

ficient safeguards against exploitation or corruption of

others, particularly those

who

because they are young,

weak

experienced.

.

.

are specially vulnerable in

body or mind or

in-

.

This conception of the positive functions of the criminal

law was the Committee's main ground for

its

recommen-

dation concerning prostitution that legislation should be passed to suppress the offensive public manifestations of prostitution, but not to

recommendation tices

make

that the

was based on the principle as follows:

The

Its

law against homosexual prac-

between consenting adults

Report ^''

prostitution itself illegal.

in private should be relaxed

stated simply in section 61 of the

"There must remain a realm of private

Street Offences

Act 1959.

14

morality and immorality which

and crude

in brief

is,

terms, not the law's business." of

It is

some interest that these developments

in

England

have had near counterparts in America. In 1955 the Amer-

Law

ican

Code

Institute published

recommendation

a

with

its

draft

Model Penal

that all consensual relations be-

tween adults in private should be excluded from the scope of the criminal law. Its

harm

grounds were {inter

to the secular interests of the

in atypical sex practice in private

partners"

;^^

and "there

is

is

Committee

majority vote of

the fundamental question of the is

entitled against state

when he

is

not hurting

its

of the Institute but rejected by a

Council.

The

issue

was therefore

ferred to the annual meeting of the Institute at

May

1955,

No.

still

very

American

Law

4, p.



13-

late Justice

Learned Hand, was,

An

24.^^

perhaps clear from the foregoing that Mill's prin-

ciples are

^^

Washing-

hot debate, accepted by a majority of 35 to

It is

re-

and the recommendation, supported by

an eloquent speech of the after a

involved

This recommendation had been approved by

the Advisory

ton in

"no

between consenting adult

interference in his personal affairs others."^'

community

which every individual

protection to

alia) that

much

alive in the criticism of law,

Institute

what-

Model Penal" Code, Tentative Draft

277.

account of the debate

is

given in Time,

May

30, 1955, p.

ever their theoretical deficiencies

may

But twice in one

be.

hundred years they have been challenged by two masters of the

Common Law. The

torian judge

first

of these

was the great Vic-

and historian of the Criminal Law, James

Fitzjames Stephen. His criticism of Mill the sombre nity,^^

which he wrote

Liberty.

is

to be

found

in

and impressive book Liberty, Equality, Frater-

It is

as a direct reply to Mill's essay

On

evident from the tone of this book that Ste-

phen thought he had found crushing arguments against Mill and had demonstrated that the law might justifiably enforce morality as such or, as he said, that the law should

be "a persecution of the grosser forms of century

later,

vice.""*^

Nearly a

on the publication of the Wolfenden Com-

mittee's report.

Lord Devlin, now

a

member

of the

House

and a most distinguished writer on the criminal

of Lords

law, in his essay on

The Enforcement

of Morals'^ took as

his target the Report's contention "that there

realm of morality and immorality which business"

and argued

sion of vice

is

as

in opposition to

much

it

is

must be a

not the law's

that "the suppres-

the law's business as the suppression

of subversive activities."

Though

a century divides these

similarity in the genera! tone

of their

arguments

^^

2nd

^^

Oxford University

edition,

is

legal writers, the

and sometimes

very great.

London, 1874. Press, 1959.

16

two

I

in the detail

shall devote the re-

mainder of these

lectures to

though

this because,

fused, they certainly tional opposition.

arguments are

their still

They

an examination of them.

I

do

at points con-

deserve the compliment of raare not only admirably stocked

with concrete examples, but they express the considered views of skilled, sophisticated lawyers experienced in the administration of the criminal law. Views such as theirs are

still

quite widely held especially by lawyers both in

England and

in this country;

more popular,

are

it

may

indeed be that they

in both countries, than Mill's doctrine

of Liberty.

POSITIVE

Before is, I

we

AND CRITICAL MORALITY

consider the detail of these arguments,

it

think, necessary to appreciate three different but con-

we

nected features of the question with which

are con-

cerned.

In

all

the three formulations given

that the question to observe that

is

it is

on page 4

one about morahty, but

it is

it is

plain

important

also itself a question 0/ morality.

It is

the questiojCL whether the eoiorcement of morality isjnoralfy justified; so

morality enters into the questipn in two

ways.

The importancF of This

that

would

it

in fact in

plainly be

some

society

no

feature of the question

sufficient

answer

—our own or others —

to it

show

is

that

was widely

regarded as morally quite right and proper to enforce, by

17

legal

No

punishment, compliance with the accepted morality.

who

one

would regard

seriously debates this question

Mill as refuted by the simple demonstration that there are

some

societies in

dorses

its

own

those cases others.

which the generally shared morality

enforcement by law, and does so even in

where the immorality was thought harmless

The

existence of societies

ation between white

punish is

it

en-

by law

still

as

associ-

immoral and

leaves our question to be argued.

true that Mill's critics have often

that English

which condemn

and coloured persons

to

made much

It

of the fact

law does in several instances, apparently with

the support of popular morality, punish immorality as such, especially in sexual matters; but they

that this I

shall

is

have usually admitted

where the argument begins, not where

indeed later claim that the play

legal writers

with what they

But they do not,

at

any

made by some

is

sometimes confused.

put forward their case as

rate,

simply proved by pointing to these social they attempt to base their

own

justifiable to use the criminal

which they

ends.

examples of the legal

treat as

enforcement of morality "as such"

it

facts.

conclusion that

law in

this

it is

way on

believe to be universally applicable,

Instead

morally

principles

and which

they think are either quite obviously rational or will be seen to be so after discussion.

Thus Lord Devlin

bases his affirmative answer to the

question on the quite general principle that for

any society

to take the steps

i8

needed

it is

permissible

to preserve

its

own

existence as an organized society,"

morality

—even

treason, be

private

and he thinks

immorality

sexual

something w^hich jeopardizes a

many

may doubt

Of

ciple,

and not merely the suggested analogy

We

might wish

justified in

on what

to

of us

taking steps to preserve it is

itself

this general prin-

taken included hideous tortures,

Lord DevHn terms the ought not

its

the steps to be

continued existence, and

taken to preserve

its

if

arguable that what

it is

Nonetheless Lord

it.

may

Devlin's principle that a society

quired to preserve

steps to be taken

"disintegration"'^ of such a society

better than

to be

take the steps re-

organized existence

is

not

itself ten-

dered as an item of English popular morality, deriving

cogency from

its

is

to the cruel persecu-

tion of a racial or religious minority, or

steps

w^ith treason.

must depend both

and what the

were mainly devoted

would be morally

like

argue that whether or not a society

sort of society

are. If a society

—may,

society's exist-

ence.

course

that im-

status as part of

our institutions.

He

its

puts ]

it

forward

as a principle, rationally acceptable, to be used

\

in the evaluation or criticism of social institutions generally.-'

And

it is

whether

whether its

surely clear that

anyone

who

holds the question

a society has the "right" to enforce morality, or it is

morally permissible for any society to enforce

morality by law, to be discussable at

all,

must be

pared to deploy some such general principles of --

The Enforcement

-^

Ibid. J pp. 14-15.

of Morals, pp. 13-14.

^9

pre-

critical

we

In asking the question,

morality.'^

are

assuming the

legitimacy of a standpoint which permits criticism of the institutions of

any

society, in the light of general principles

and knowledge of the

facts.

To make this point ogy much favoured by which distinguished actually accepted

clear,

I

would

revive the terminol-

the Utilitarians of the last century,

morality,"

"positive

and shared by a given

the

morality

group, from

social

the general moral principles used in the criticism of actual

^ciaLinstitutions^ including positive morality. call

We may

such general principles "critical morality," and say that

our quesfion

one of

is

morality about the legal en-

critical

forcement of positive morality.

'A

second feature of our question worth attention

simply that are

it is

committed

a question of justification. In asking

it

is

we

at least to the general critical principle that

the use of legal coercion by any society calls for justification as

something prima

for the sake of is

no prima

facie objectionable to be tolerated only

some countervailing good. For where there

facie objection,

wrong, or

evil,

men do

for or give justifications of social practices, ^*

Lord Devlin has been

whether

criticised

society has a right to enforce

for

its

not ask

though they

asking the question

judgment

in matters of

morality on the ground that to talk of "right" in such a context

meaningless. See

Graham Hughes, "Morals and

71 Yale L.J. (1962) at 672. This criticism

Lord Devlin invokes some general his affirmative

answer

is

Law,"

mistaken, just because

critical principle in

to the question.

20

is

the Criminal

support of

may may

ask for and give explanations of these practices or

attempt to demonstrate their value.

It is

salutary to inquire precisely w^hat

is

often assumed.

enforcement

One

the actual

is

It

is

prima

in fact less simple than

is

has two different but related aspects.

punishment of the offender. This char-

acteristically involves

ment

that

enforcement of morality;

facie objectionable in the legal

for the idea of legal

it is

him

depriving

of liberty of

move-

or of property or of association w^ith family or

friends, or the infliction

upon him

of physical pain or even

death. All these are things w^hich are assumed to be w^rong to inflict

on others w^ithout

special justification,

and

they are so regarded by the law^ and morality of

oped

if

devel-

To put it as a lawyer would, these are things

societies.

which,

all

in fact

the y^re not justified as sancTroris' are delicfTor

wrongs.

The second

who may

aspect of legal enforcement bears on those

never offend against the law, but are coerced

into obedience by the threat of legal punishment.

rather than physical restrictions

what

is

is

This

normally meant

in the discussion of political arrangements by restrictions

on

liberty.

Such

restrictions,

it

is

to be noted,

may

be

thought of as calling for justification for several quite distinct reasons.

The imimped^ed

free choice

may

prima

wrong

facie

able because

it

exercise by individuals of

be held a value in to interfere; or

it

itself witTi

may

which

it is

be thought valu-

enables individuals to experiment— even

21

with living

— and to discover things valuable both to them-

and

selves liberty

to

may

others.

But interference with individual

be thought an eyiLre£uiring justification for

simpler, utilitarian reasons; for a special

form

it is

—often

of suiifering

itself

the infliction of

very acute

—on

those

whose

desires are frustrated

This

of particular importance in the case of laws enforc-

is

by the fear of punishment.

may

ing a sexual morality. They special degree.

For both the

create misery of a quite

difficulties

involved in the re-

pression of sexual impulses and the consequences of repression are quite different stention

in the ab-

from "ordinary" crime. Unlike sexual impulses,

the impulse to steal or to

wound

in a minority of mentally

these crimes

is

or even kill

abnormal

is

not, except

cases, a recurrent

and

Resistance to the temptation to

insistent part of daily life.

commit

from those involved

not often, as the suppression of

sexual impulses generally

something which

is,

affects the

development or balance of the individual's emotional

life,

happiness, and personality.

Thirdly, the distinction already made, between positive

morality and principles of dissipate a certain

critical morality,

is

not whether

it is

It is

sometimes said that the

morally justifiable to enforce

morality as such, but only which morality Is

it

may be enforced.

only a utilitarian morality condemning

which

are

serve to

misunderstanding of the question and

to clarify its central point.

question

may

harmful

to others

.f^

22

Or

is it

activities

a morality

which

also

condemns

or not ? This

certain activities

way

of regarding the question misrepresents

the character of, at any rate, tarian

which are harmful adopts whether a

he

is

utili-

activities

and,

quite unconcerned with the question

is

his critical principles. If

ety,

should only punish

is

moraUty of the

view, the reason

A

controversy.

this as a critical principle,

utilitarian morality

as the positive

if

modern

who insists that the law

in so doing, he

whether they are harmful

why

it

it is

or

is

not already accepted

society to

which he

so accepted, that

should be enforced.

is

applies

not, in his

It is

true that

successful in preaching his message to a given soci-

members

of

it

will then be compelled to behave as

utilitarians in certain

ways, but these facts do not

that the vital difference

between him and

his

mean

opponent

is

only as to the content of the morality to be enforced. For as

may

tarian's

be seen from the main criticisms of Mill, the Utili-

opponent,

who insists

that

it is

morally permissible

to enforce morality as such, believes that the

mere

fact that

certain rules or standards of behaviour enjoy the status of a society's positive morality

is

the reason

— or

at least part

of tlie_xea5on— which justifies their enforcement by law.

No doubt in older controversies the opposed positions were different: the question

could punish only

activities

acts of disobedience to

commands

may have been whether causing secular

what were believed

or prescriptions of Natural

crucial to the dispute in

its

harm

or also

to be divine

Law. But what

modern form

23

the state

is

is

the significance

to be attached to the historical fact that certain conduct,

matter what,

is

prohibited by a positive moraHty.

tarian denies that this has justify its

any significance

enforcement; his opponent

These are divergent

critical principles

The

no

utiU-

sufficient to

asserts that

which do not

it

has.

differ

merely over the content of the morality to be enforced, but over a more fundamental and, surely, issue.

24

more

interesting

II

THE USE AND ABUSE OF EXAMPLES Both in England and in America the criminal law contains rules

which can only be explained

still

as

attempts to

enforce morality as such: to suppress practices

condemned

as

immoral by

positive morality

though they involve noth-

ing that would ordinarily be thought of as persons.

Most

sexual morals,

of the examples

and

in

come from

harm

to other

the sphere of

England they include laws against

various forms of homosexual behaviour between males,

sodomy between persons bestiality, incest, living

of different sex even

on the earnings

keeping a house for prostitution, and cision in

Shaw's

interpreted to

married,

of prostitution,

also, since the de-

case, a conspiracy to corrupt public morals,

mean,

in substance, leading others (in the

opinion of a jury) "morally astray."

would add further those forms of

if

cases: the

To

this list

some

laws against abortion, against

bigamy or polygamy which do not involve

deception, against suicide and the practice of euthanasia.

25

Rut, as latter as

due

shall later argue, the treatment of

I

some

attempts to enforce morality as such,

to the neglect of certain

is

of these

a mistake

important distinctions.

In America a glance at the penal statutes of the various states of the

Union

something quite astonishing

reveals

to

English eyes. For in addition to such offences as are punishable

under English law, there seems

"normal"

practice, except

to be

husband and

relations betw^een

wife and solitary acts of masturbation, which

bidden by the law of some of states adultery, able in

England

state.

since

in

not for-

In a very large

number

Cromwell's time, is

so only

rious, or continuous. Fornication

England or

is

which has not been criminally punish-

in a minority of states, this

in

no sexual

is

is

a crime, though,

if it is

open, noto-

not a criminal offence

most countries of the

civilized world,

but only a minority of American states do not have

making

utes able,

stat-

fornication under certain conditions punish-

and some

states

make even

a single act punishable.^

Besides these statutory provisions there

is

an unknown

quantity of local or municipal enactments which, in some cases, are

more

restrictive

than the

state laws,

and though

these are for that reason of doubtful validity, they have

been enforced. In California the penal code does not make

many

years

Institute,

Model

prostitution or fornication a crime, yet for

^

See, for a short

summary, the American Law

Penal Code, Tentative Draft No.

4,

26

pp. 204-10.

persons have been convicted in Los Angeles under a local

ordinance of the offence solely

commonly known

on proof that they used

No

commonly

ment

room

for fornication.^

doubt much, and perhaps most, of immorality

legislation against sexual it is

a

as "resorting,"

said to be.

are at present very

But the

hard

is

as

this

American

dead a

facts as to

In

to establish.

letter as

law enforce-

many

states,

not

among them, the annual criminal statistics do usually break down figures for sex crimes further than

the

two heads

California

"Rape" and "Other sexual

of

in Boston as late as 1954 the sex laws receive

offences."

But

were reported

to

"normal" enforcement, and in 1948 there were 248

arrests for adultery in that city.^

contemplate

this situation

No

which

I

think, should

with complacency, for in com-

bination with inadequate published of criminal laws

one,

statistics

the existence

are generally not enforced places

formidable discriminatory powers in the hands of the police

and prosecuting

Mill's critics

have always pointed

of laws punishing

threw doubt on -

The

State

authorities.

mere immorality

to the actual existence as if this in

his claim that the criminal

Supreme Court

in

some way

law should not

December 1961 held

the ordi-

nance to be in conflict with the state laws and void. See in re Carol Lane, Crim. No. 6929, 57 A.C. 103, 18 Cal. Rptr. 33. This was confirmed after a rehearing on June 28, 1962. 22 Cal. Rptr. 857. ^

No.

American 4, p.

Law

Institute,

Model Penal Code, Tentative Draft

205, n. 16.

27

be used for this purpose. His defenders have indeed com-

plained that the

were here guilty of

critics

fallacious reason-

ing or irrelevance. John Morley, for example, in a vivid phrase said that in Stephen's book "a good deal of bustling ponderosity

is

devoted" to establishing the existence of

of this sort; he thought that Stephen

had simply

see that "the actual existence of laws of

wholly irrelevant it

would be

to

better

if

Mr.

law^s

failed to

any given kind

Mill's contention,

which

laws of such a kind did not

is

is

that

exist."*

In fact, neither Stephen (except in one place^) nor Lord Devlin,

who

also appeals to the actual content of English

criminal law,

from what

is

irrelevance.

is

guilty of this

to

form

what should

Stephen,

when

be,

of the fallacy of arguing

nor are they guilty of

forced by Morley to state

why

he regarded his examples as relevant to the argument, explained that he thought

it

"not irrelevant to show that

Mill was at issue with the practical conclusions to which

most nations had been led by experience." In somewhat similar fashion

Lord Devlin

said:

Is the argument consistent or inconsistent with the fundamental principles of English law as it exists today? That is the first way of testing it though by no means a conclusive one. In the field of jurisprudence one is at

liberty to overturn

even fundamental conceptions

they are theoretically unsound. *

Quoted

^

Ibid., pp. 171-72.

But

to see

in Liberty, Equality, Fraternity, p. i66 n.

28

how

if

the

argument

fares

under the existing law

is

a

good

starting

point.^

Both

writers,

I

think, in these perhaps not very perspicu-

ous remarks, intend to invoke only the innocuous conservative principle that there

and long established

a

is

presumption that

institutions are likely to

common

have merits

not apparent to the rationalist philosopher. Nonetheless,

when we examine some of criminal

of the particular rules or principles

law discussed

apparent that the use

at

made

length by these writers, of

them

confusing. These examples are not sexual morals,

is

both confused and

drawn from

and certainly many,

align themselves with Mill

is

it

the area of

who would

wish

to

and protest against the use

of

the criminal law to punish practices simply because they

offend positive morality, might hesitate or refuse to jettison the particular rules of criminal law instanced by these writers.

So

if

they are correctly classed as rules which can

only be explained as designed to enforce morality their persuasive force

is

very considerable.

We may

indeed, to

use Stephen's words, "be disposed to doubt" whether a principle that

would condemn

be right. But there are,

I

think,

these particular rules could

good reasons

for disputing

these writers' treatment of these rules as examples of the

use of the law solely to enforce morality.

forced to choose between jettisoning ^

The Enforcement

of Morals, p. 7.

29

them

We

are not

or assenting to

the principle that the criminal law

purpose.

Some

may

be used for that

closer analysis than these authors give to

these examples

is,

however, required, and

to this

I

now

turn.

PATERNALISM AND THE ENFORCEMENT OF MORALITY I

He

shall start

with an example stressed by Lord Devlin.

points out' that, subject to certain exceptions such as

rape, the criminal

law has never admitted the consent of

the victim as a defence.

It is

not a defence to a charge of

why euthanasia or mercy killing terminating a man's life at his own request is still murder. This is a rule of criminal law which many now would wish to retain, though they would also wish to

murder or

a deliberate assault,

object to the legal

morality which

and

this

is

punishment of offences against

harm no

one.

positive

Lord Devlin thinks

that

these attitudes are inconsistent, for he asserts of the rule

!

only one explanation," and

under

discussion,

this

that "there are certain_s tandards o f behaviour or

is

"There

moral _principles which

is

society requires to be observed."^

Among these aireTlre"sanctTty oFliuriian life and presumably (since the rule applies to assaults) the physical integrity of

the person. others

^

Lord

So in the case of

this rule

and

a

number

of

Devlin claims that the "function" of the crimi-

The Enforcement

of Morals, p.

30

8.

^

Ibid.

nal law

is

But

"to enforce a

this

argument

The

simply not true.

else."*

not really cogent, for Lord Dev-

is

statement that "there

lin's

as a

moral principle and nothing

is

only one explanation"

is

rules excluding the victim's consent

defence to charges of murder or assault

may

perfectly

well be explained as a piece of paternaHsm, designed to

Mill no doubt

protect individuals against themselves.

might have protested against a

paternalistic policy of using

the law to protect even a consenting victim

harm

much

nearly as

merely

he protested against laws used

to enforce positive morality; but this does not

that these

two

policies are identical.

was very well aware in

as

from bodily

condemning

to prevent

mean

Indeed, Mill himself

of the difference

between them: for

interference with individual liberty except

harm

to others

he mentions separate types of

inadequate ground which have been proffered for the use of compulsion.

He

distinguishes "because

him" and "because

for

it

will

make him

"because in the opinion of others

Lord Devlin

of the individual there

—the ^

it

will be better

happier" from

would be

right."^^

says of the attitude of the criminal

the victim's consent that

avail himself of

it

it if

if

the law existed for the protection

would be no reason why he should

he did not want

it.''

But paternalism

protection of people against themselves

Ibid., p. 9.

^*^

On

^^

The Enforcement

Liberty, Chapter

law to

i.

of Morals,

p. 8.

31



is

a per-

coherent policy.

fcctly

Indeed,

mid-twentieth century to laissez faire since Mill's

social history,

day

is

upon

this, for

wane

of

one of the commonplaces of

civil.

The

supply of drugs or nar-

even to adults, except under medical prescription

punishable by the criminal law, and

dogmatic is

the

and instances of paternalism now abound in

our law, criminal and cotics,

insist

seems very strange in

it

to say of the

law creating

it

is

would seem very

this offence that "there

only one explanation," namely, that the law was con-

cerned not with the protection of the would-be purchasers against themselves, but only with the seller for his is

immorality.

If,

as

punishment

of the

seems obvious, paternalism

a possible explanation of such laws,

it is

also possible in

the case of the rule excluding the consent of the victim as

a defence to a charge of assault.

In neither case are

we

forced to conclude with Lord Devlin that the law's "functio n" is "to

enforce a moral principle and nothing

else."^"

In Chapter 5 of his essay Mill carried his protests against paternalism to lengths that fantastic.

He

cites the

drugs, and criticises

example of

them

may now

appear to us

restrictions of the sale of

as interferences

with the liberty

of the would-be purchaser rather than with that of the seller.

cism

No doubt if we no longer sympathise with this criti-

this

is

due, in part, to a general decline in the belief

that individuals ^-

know

their

own

interests best,

and

See, for other possible explanations of these rules,

"Morals and the Criminal Law,"

p. 670.

to

an

Hughes,

which

increased awareness of a great range of factors

diminish the significance to be attached to an apparently free choice or to consent. Choices

may

be

made

or consent

given without adequate reflection or appreciation of the consequences; or in pursuit of merely transitory desires; or in various predicaments

when

the

judgment

likely to

is

be clouded; or under inner psychological compulsion; or

under pressure by others of a kind too subtle ble of proof in a

law

court.

Underlying

of paternalism there perhaps

is

is

respond

Mill, in fact,

much

pursues these things

artificially

who knows what

satisfaction or happiness;

when he

to cor-

man whose

de-

stimu-

he wants

and

who

can.

Certainly a modification in Mill's principles if

what a

endows him with too

not liable to be

by external influences;

and what gives him

extreme fear

which now seems not

like

of the psychology of a middle-aged

sires are relatively fixed,

lated

Mill's

a conception of

normal human being to the facts.

to be suscepti-

is

required,

they are to accommodate the rule of criminal law under

discussion or other instances of paternalism. But the modi-

would not abandon

fied principles

of the criminal

law merely

They would only have something we nal law, even acts

which

tinction

the objection to the use

to enforce positive morality.

harming others

to provide that

may still seek to prevent by use of the when the victims consent to or assist

are

harmful

to

crimiin the

them. The neglect of the

between paternalism and what

33

I

is

dis-

have termed legal

moralism

is

important

It is

too often assumed that

tect

one

is

man from

form

as a

another

if

a

its

of a

law

more general

not designed to pro-

is

only rationale can be that

designed to punish moral wickedness

lin's

or, in

statutes

it

Lord Dev-

words, "to enforce a moral principle." Thus

urged that

error.

it is

often

punishing cruelty to animals can only

be explained in that way.

But

it

is

certainly intelligible,

both as an account of the original motives inspiring such legislation

and

as the specification of

an aim widely held

to be worth pursuing, to say that the law

with the suffering,

is

here concerned

albeit only of animals, rather

the immorality of torturing them.^^ Certainly

supports this use of the criminal law consistency to admit that the law

may

is

than with

no one who

thereby bound in

punish forms of im-

morality which involve no suffering to any sentient being.

THE MORAL GRADATION OF PUNISHMENT I

now

turn back to a very different and perhaps more

illuminating error that the criminal

made by

Stephen, in his effort to show

law not only should be but actually was

a "persecution of the grosser forms of vice,"^^

and not

merely an instrument for the prevention of suffering or ^^

Lord Devlin seems quite unaccountably

in his brief reference to cruelty to animals,

Morals, '^

p. 17.

Liberty, Equality, Fraternity, p. 162.

34

to ignore this point

The Enforcement

of

He

harm.

claimed that certain principles "universally ad-

mitted and acted upon as regulating the amount of punish-

ment"^^ showed this.

this to

be the case. His argument

is

simply

When the question is how severely an offender should

be punished, an estimate of the degree of moral wickedness involved in the crime

always relevant. This

is

is

why

the

strength of temptation, diminishing the moral guilt, in

most if

cases operates in mitigation of

the object of legal

harmful

A

acts this

punishment; whereas

punishment were simply

would not be

to prevent

so.

judge has before him two criminals, one of

whom

appears from the circumstances of the case to be ignorant and depraved, and to have given

way

to a very

strong temptation under the influence of the other, a

is

man

of rank and education, and

the offence of

which both

who committed

are convicted

paratively slight temptation.

I

under com-

will venture to say that

he made any difference between them

if

who

at all every

judge on the English bench would give the

first

man

a lighter sentence than the second.^^

There

is,

of course,

little

doubt that Stephen here accu-

rately portrays conventional views, frequently applied

by

Courts in administering the criminal law, though perhaps

with

less

tainly

agreement

now

many who would

ment of

sexual morality

^"Ibid.

than

when Stephen

wrote. Cer-

protest against the legal enforce-

might

^^ Ibid., p. 162,.

35

yet

admit or even

insist that

greater wickedness should aggravate, and lesser wickedness should mitigate, the severity of punishment. But

Stephen, like

this fact

claimed that

if

we

many

others, inferred too

from

much.

He

attach importance to the principle that

the moral difference between offences should be reflected in the gradation of legal punishments, this

object of such

showed

punishment was not merely

that the

to prevent acts

"dangerous to society" but "to be a persecution of the

And

grosser forms of vice."^'

law

is

(or includes)

vice,"^^

straint

it

if

the object of the criminal

"promoting virtue" and "preventing

follows, he thought, that "it ought to put a re-

upon

vice not to such

an extent merely

as

is

neces-

sary for definite self-protection but generally

on the ground

may make

punishable by

that vice

is

a

bad thing."^^ So we

law actions which are condemned by even

society as

immoral,

they are not harmful.

if

Surely this argument

is

a

non sequitur generated by

Stephen's failure to see that the questions

"What

sort of

may justifiably be punished?" and "How severely should we punish different offenses?" are distinct and independent questions. There are many reasons why we conduct

might wish the

legal gradation of the seriousness of crimes, conflict

with

common

estimates of their comparative wickedness.

One

reason

that such a conflict

undesirable on simple

utili-

expressed in

is

its

scale of

punishments, not to

is

^^

Liberty, Equality, Fraternity, p. 162.



Ibid., p. 159.

^9 Ibid.,

pp. 147-48.

36

tarian grounds:

it

might

either confuse

moral judgments

or bring the law into disrepute, or both. Another reason is

that principles of justice or fairness

between different

offenders require morally distinguishable offences to be differently

treated

and morally

treated alike.

These

although

also true that there

it is

tion to insist

on

similar

principles are

their application

still

is

a

offences

widely respected,

growing

where

be

to

disinclina-

this conflicts

with

the forward-looking aims of punishment, such as prevention or reform.

tempt

But those

who

concede that

to adjust the severity of

punishment

we

should

to the

at-

moral

gravity of offences are not thereby committed to the view that

punishment merely for immorality

they can in perfect consistency

insist

justified.

is

on the one hand

For that

the only justification for having a system of punishment

is

harm and only harmful conduct should be punished, and, on the other, agree that when the question of the quantum of punishment for such conduct is raised, we to prevent

should defer to principles which

make

relative

moral

wickedness of different offenders a partial determinant of the severity of punishment. It is

in general true that

we cannot

infer

from

principles

applied in deciding the severity of punishment what the

aims of the system of punishment are or what duct

may

justifiably be punished.

ciples, e.g-,

may

For some

sorts of con-

of these prin-

the exclusion of torture or cruel punishments,

represent other values with

37

which we may wish

to

compromise, and our compromise with them may the extent to

punishment. So

tify

harmful

restrict

which we pursue the main values which

activities

if

we

in the course of punishing only

think

right (for either of the

it

reasons distinguished above) to

mark moral

between different offenders,

does not show that

must

also think

harmful.

what

is

It

it

jus-

this

right to punish activities

two

differences

which

we

are not

only shows that, in the theory of punishment,

in the

end morally

tolerable

is

apt to be

plex than our theories initially suggest.

more com-

We cannot usually

in social life pursue a single value or a single

moral aim, un-

troubled by the need to compromise with others.

PRIVATE IMMORALITY AND PUBLIC INDECENCY

So

far, scrutiny of

two examples used by the

writers

we

have considered has established two important distinctions: the distinction between paternalism of morality,

and

that

between justifying the practice of

punishment and justifying is

and the enforcement

its

the crime of bigamy. This

amount. Our third example

is

not discussed by Stephen or

Lord Devlin, but the punishment

of

polygamy

is

cited as

an example of the legal enforcement of morality by Dean

Rostow critics.^" '-'^^

in his essay It is,

defending Lord Devlin against his

however, a curiously complex

case,

and an

"The Enforcement of Morals," 174 Cambridge L.J. (i960) at Dean Rostow mainly discusses polygamy "based on sincere

p. 190.

38

examination of

shows that punishment of bigamy

unambiguously

to be classed rality.

it

as

an attempt

In the short discussion of

attempt to show that in cussed, those

which follows

this case, as in the

moshall

I

two already

dis-

who would wish to retain this rule of criminal

law are not thereby committed immorality

it

not

is

to enforce

to the policy of

punishing

punishment can be supported

as such; for its

on other reasonable grounds. In most

common law

jurisdictions

it is

a criminal of-

fence for a married person during the lifetime of an

exist-

ing husband or wife to go through a ceremony of marriage

with another person, even existing marriage.

ing deception land and in

is

if

the other person

The punishment

of

If a

of the

involv-

curious in the following respect. In Eng-

many

other jurisdictions where

able, the sexual cohabitation of the parties

offence.

knows

bigamy not

married

man

is

it

is

punish-

not a criminal

cares to cohabit with another

woman —or even several other women —he may do so with impunity so far as the criminal law is concerned. He may set

up house and pretend

brate his union with

that he

married he

all

religious belief" rather than

asks (rhetorically) "Should

common

on

'feeling'

39

He

for pleasure."

not conclude that

condemnation of polygamy rests

cele-

a distribution of

"bigamy contracted

we

may

the usual social ceremonial of a

fundamental a theme in the existing even though the law

:

champagne and

wedding cake and with

States that the

is

monogamy

is

so

morality of the United as a

and not on

crime

is

justified

'reason'?"

None

valid marriage.

of this

illegal;

is

but

if

he goes

through a ceremony of marriage, the law steps in not merely to declare

Why

it

invalid but to punish the bigamist.

does the law interfere at this point, leaving the

substantial immorality of sexual cohabitation alone

?

Vari-

Some have

ous answers have been given to this question.

suggested that the purpose of the legal punishment of

bigamy

is

frustrate

legitimate.

the draft

where

adultery, even

it

first

Institute suggests in

Model Penal Code

that

its

bigamous

does not involve deception, might

punishment because

cation to the

to

to misrepresent illegitimate children as

The American Law

commentary on call for

from confusion, or

to protect public records

schemes

a public affront

it is

and

spouse,

under the colour of matrimony

also because cohabitation is

and

in desertion, non-support,

and provo-

specially likely "to result

divorce.""^

These,

it

is

urged, are harms to individuals which the criminal law

may properly seek Some at least of

these- suggested

genious than convincing. real

enough;

ishing

yet

many may

specific offences

if

See

in-

may

be

still

they stress

think that a case for punif

these

harms were un-

they were catered for by the creation of

which penalized not the bigamy

example, the causing of official records.

grounds seem more

The harms

bigamy would remain even

likely to result, or

-^

by punishment.

to prevent

false statements to

Perhaps most

who

p. 220.

40

but, for

be entered into

find these various justi-

fications of the existing

retain

it

would urge

significance

is

law unconvincing but

that in a country

it,

where deep

wish

the law against

to

religious

monogamous marriage and

attached to

the act of solemnizing

still

to

bigamy should

be accepted as an attempt to protect religious feelings from offence by a public act desecrating the ceremony.

two previous examples, the question

as with the

those

who

purposes also

is

Again

whether

think that the use of the criminal law for these

is

in principle justified are inconsistent

deny that the law may be used

they

if

punish immorality

to

as such. I

do not think

combination of

that there

is

It is

is

a

from outrage by

punished neither

as a nuisance.

see that

is

if,

in the

to protect re-

a public act, the biga-

as irreligious

For the law

in this

need for one more

important to

bigamy, the law intervenes in order

ligious sensibilities

mist

any inconsistency

attitudes, but there

important distinction. case of

is

nor

as

immoral but

then concerned with the

of-

fensiveness to others of his pubHc conduct, not with the

immorality of his private conduct, which, in most countries, it

leaves altogether unpunished. In this case, as in the case

of ordinary crimes

which cause physical harm,

the protec-

tion of those Hkely to be affected

is

certainly an intelligible

and

it

certainly could not be

aim

for the

law

to pursue,

said of this case that "the function of the criminal

enforce a moral principle and nothing else."

law

It is

is

to

to be

noted that Lord Devlin himself, unlike his defender Dean

41

Rostow, seems to attend to include bigamy in his

list

this distinction

of crimes

for he does not

which the

Wolfenden Report would compel

the

;

principles of

us to reject. This

is

not an oversight, for he specifically says of those which are included in the in private It

list

that "they are

and without offence

all acts

which can be done

to others."""

perhaps doubtful whether Mill's principles

is

stated in the essay

On

as

Liberty would have allowed the

punishment of bigamy, where no deception was involved,

on the ground feelings.

tion

that

terests" of others,

might deserve it

it is

and an

at least

He

punishment

a public act offensive to religious

moral blame, he both

which

is

individuals;

asserts this

and

notoriously very difficult

seems to have thought that blame and

two conditions were

making

he thought considera-

act causing offence to feelings

for offence to feelings

association or parties

clear that

to the "feelings" as well as to the "in-

in language

to interpret.

least

was

For although

might be due

qualifies

it

special

were

justified

satisfied: first that

relationship

existed

only

some

if at

close

between the

consideration an obligation to "assignable"

and secondly that the harm should not be

"merely contingent" or "constructive.""^ The Enforcement of Morals, p. 9. Nonetheless Lord Devlin warmly endorses Dean Rostow's defence. See "Law, Democracy, ^-

and Morality,"

no

University of Pennsylvania L.R. (1962) at p.

640. ^^

On

Liberty, Chapter 4.

42

I

If

we

strictive,

disregard the

first

of these conditions as too re-

and interpret the second

to

mean

only that the

offence to feelings should be both serious and likely, the

question whether or not to punish bigamy will depend on

comparative estimates (over which

men may

of course

differ) of the seriousness of the offence to feelings

the sacrifice of

and of

freedom and suffering demanded and im-

posed by the law. Supporters of the law could certainly

argue that very

the law in this instance. less

or suffering

little sacrifice

It

denies only one, though doubt-

the most persuasive, item of the appearance of legal

respectability to parties

stance

and parade

riage.

The

case

is

all

who

are allowed to enjoy the sub-

the other simulacra of a valid mar-

which may demand

sion of powerful instincts with

intimately connected.

the law

from attempts

therefore utterly different

to enforce sexual morality

is

demanded by

is

may plausibly

On

the repres-

which personal happiness

the other hand, opponents of

urge, in an age of

waning

faith, that

the religious sentiments likely to be offended by the public

celebration of a

bigamous marriage are no longer very

widespread or very deep and

it is

enough

that such

mar-

riages are held legally invalid.

The example

of

bigamy shows the need

between the immoraUty of a practice and public offensive act or nuisance.

This

is

to distinguish its

aspect as a

of general im-

portance; for English law has often in the course of

development come

to

view in

43

just this light

its

conduct pre-

viously punished simply because

cepted religion or morality.

in

was forbidden by

Thus any

now

it is

an offensive or insulting manner, likely

Those who support

of the peace.

this

whose

England if it is

to cause a

modern form

not, of course,

belief in the religion of those

protected from insult.

in

only punishable

punishment of blasphemy are

ac-

denial of the truths

was once punished

of the Christian religion

blasphemy, whereas

it

as

made

breach of the

committed

to

feelings are thereby

They may indeed

quite consistently

oppose any attempt to enforce conformity with that or any religion.

In sexual matters a similar line generally divides the

punishment of immorality from the punishment of indecency.

The Romans

distinguished the province of the Cen-

concerned with morals, from that of the Aedile, con-

sor,

cerned with public decency, but in modern times perhaps insufficient attention has

been given

to this distinction.'^

Indeed, Lord Simonds in his speech in the House of Lords in Shaw's case to

went out

of his

way

to profess indifference

it.

It

matters

To one

little

what

label

is

of your Lordships

it

given to the offending

may

appear an affront to

public decency, to another considering that

ceed in desires -*

gust

But

its it

see

act.

it

may

suc-

obvious intention of provoking libidinous

will

seem

'The Censor

a corruption of morality."^ as Aedile,"

4, 1961.

25(1961)2 A.E.R.

at 452.

44

Times Literary SuppL, Au-

But the distinction

and important.

in fact both clear

is

Sexual intercourse between husband and wife moral, but

takes place in public

if it

public decency.

Homosexual

ing adults in private

is

it

not im-

is

an affront to

is

intercourse between consent-

immoral according

to conventional

morality, but not an affront to public decency, though

would be both same

the

act, if

immoral and

as

if it

took place in public. But the fact that

done

in public, could be regarded both as

an affront

to public

us to the difference between these

and

to the different principles

their

punishment must

rest.

decency must not blind

two

aspects of conduct

on which the

The

justification of

recent English law re-

lating to prostitution attends to this difference.

made prostitution a crime but punishes its public tion in order to protect the ordinary citizen,

wilhng witness of

it

it

has not

It

manifesta-

who

is

an un-

from something

in the streets,

of-

fensive. It

made

may no doubt

much

be objected that too

in this discussion of the distinction

between what

done in public and what

is

done

m^ay be said,

is

given not only

feelings,

it

activities or their

when

certain sexual practices as

others indulge in

them

in private.

pointless to attend to the distinction

privately

For offence

in private.

is

to

when immoral

commercial preHminaries are thrust upon

unwilling eyewitnesses, but also

condemn

has been

and what

is

done

who

strongly

immoral learn

Because this

and

if

that

is so, it is

between what

in public;

45

those

we do

is

done

not

at-

tend to

it,

then the poHcies of punishing

morahty and punishing them

for

mere im-

for conduct offensive to the

feehngs of others, though conceptually differ in practice. All

men

distinct,

would not

conduct strongly condemned as im-

moral would then be punishable. It is

thesis,

important not to confuse

which

an existing

social morality

of coercion.

The

argument with the

examine, that the preservation of

shall later

I

this

is itself

a value justifying the use

present argument invokes in support of

the legal enforcement of morality not the values of morality

but Mill's

own

used to prevent

made

principle that coercion

harm

to this use of the principle.

distress occasioned

may

be justifiably

to others. Various objections It

may

may

be

be said that the

by the bare thought that others are

of-

fending in private against morality cannot constitute

"harm," except in a few neurotic or hypersensitive persons

who

are literally

admit that such

"made

distress

ill"

is

persons, but argue that

by

this

thought. Others

may

harm, even in the case of normal it

is

too slight to outweigh the

great misery caused by the legal enforcement of sexual

morality.

Although these objections are of subsidiary importance.

surely is

is

are not without force, they

The fundamental

that a right to be protected

inseparable

from the

from the bare knowledge

objection

distress

which

that others are

acting in ways you think wrong, cannot be acknowledged

by anyone

who

recognises individual liberty as a value.

46

For the extension of the utiHtarian principle that coercion

may

men from harm,

be used to protect

from

their protection

form

this

so as to include

of distress, cannot stop

there. If distress incident to the belief that others are

wrong

is

harm,

that others are

To

so also

is

the distress incident to the belief

doing what you do not want them

coexist

of distress

would others

Such

this

what they do; and the only

with

liberty to

form

liberty plainly

to

which no one

ance of the principle that if

to individual liberty

accept-

when

they learn what

it.

No

social order

any value could

which accords

also accord the right

be protected from distress thus occasioned. Protection

from shock or

some public display another matter. one.

It is so,

The

is,

as

offence to feelings caused by

most

distinction

legal systems recognise,

may sometimes

be a fine

in those cases such as the desecration of vener-

ated objects or ceremonies

or offence to feeling, is

minimum,

—unless, of course, there are other good

grounds for forbidding

to

seriously objects.

the individual may do what he

others are distressed

that he does

is

quite nugatory. Recognition of in-

is

dividual liberty as a value involves, as a

it is

liberty that could

this extension of the utilitarian principle

do those things

wants, even

to do.

them simply because

punish people for causing

be tantamount to punishing object to

doing

if

where there would be no shock

those on

whom

the public display

obtruded had not subscribed to certain religious or moral

beliefs.

Nonetheless the use of punishment to protect those

47

made

leaves the offender at liberty to vate,

own

beliefs

do the same thing

in pri-

vulnerable to the public display by their

if

he can.

It

is

not tantamount to punishing

men

simply because others object to what they do.

THE MODERATE AND THE EXTREME THESIS

When we turn from these examples which are certainly disputable to the positive grounds held to justify the legal

enforcement of morality

moderate and an extreme

most of

though

thesis,

sometimes moved from one the transition.

important

is

it

his essay, the

critics of

to the other

Lord Devlin seems moderate

to

thesis

to distinguish a

Mill have

without marking

me

to maintain, for

and Stephen the

ex-

treme one.

According

moderate

to the

the cement of society without ;

of individuals but in

no

it

there

"A

society.

Lord Devlin's words,

thesis, a

immorality

others nor,

may

when done

would be aggregates

recognized morahty"

not

and though

moral code: is

if

"no menace ^^

harm

or endanger or corrupt

in private, either shock or give of-

in isolation

we remember

this,

from

we

to others" nonetheless

The Enforcement

is,

a particular

fence to others, this does not conclude the matter. For

must not view conduct

is

"as necessary to society's existence

as a recognized government,""*^

act of

shared morality

of Morals, p. 13.

48

its

effect

on the

can see that one

may by

his

we

who

immoral

conduct "threaten one of the great moral principles on

which

society

principle

is

based.""" In this sense the breach of

an offence "against society

may

society

is

use the law to preserve

it

to safeguard anything

is

why

moral

as a whole,""®

and

morality as

uses

its

it

This

else essential to its existence.

"the suppression of vice

is

as

much

the law's busi-

ness as the suppression of subversive activities.""^

By

contrast, the

extreme

thesis does not look

upon

a

shared morality as of merely instrumental value analogous to ordered

ment

government, and

does not justify the punish-

it

of immorality as a step taken, like the

treason, to preserve society

from

Instead, the enforcement of morality

of value, even directly

say that

the

immoral

acts

harm no one

main

society.

argument used, but they critical positions at

do,

I

sion "enforcing morality as such." of distinguishing the

always two levels

at

two

sion

do not

two

think, character-

this act

harm anyone

on the shared morality

may ask. Does this act ''Ibid.,p.S.

theses

in the expres-

Perhaps the

clearest

to see that there are

is

which we may ask whether some

breach of positive morality

Does

I

the root of most arguments,

and they incidentally exhibit an ambiguity

way

dire ctly, or in-

possible to allot to one or other of these

it is

of

regardeduasjajhing

is

by weakening the moral cement of

theses every ise

if

punishment

dissolution or collapse.

is

harmful.

We

may

independently of of society

?

And

its

''Ibid.,p.is.

49

first.

secondly

affect the shared morality

''Ibid.

ask

repercus-

and

we

there-

by weaken society? The moderate

punishment of the

act

answer

second

at least at the

thesis requires,

to be justified,

is

level.

if

the

an affirmative

The extreme

thesis does

not require an affirmative answer at either level.

Lord Devlin appears

to

defend the moderate

thesis.

I

though he says that

society has the

right to enforce a morality as such on the

ground that a

say "appears" because,

shared morality

is

essential to society's existence,

him

at all clear that for

It

is

not

the statement that immorality

jeopardizes or weakens society fact.

it

a statement of empirical

is

seems sometimes to be an a priori assumption, and

sometimes a necessary truth and a very odd one. The most important indication that

vague reference of

moral bonds

no evidence

is

this

often the

produced

to

so

is

that, apart

showing

to "history" is

is

first

from one

that "the loosening

stage of disintegration,"^^

show

from

that deviation

cepted sexual morality, even by adults in private,

is

ac-

some-

thing which, like treason, threatens the existence of society.

No

reputable historian has maintained this thesis, and

there

is

of fact

indeed it is

much

evidence against

entitled to

no more

it.

Lord Devlin's

a proposition

respect than the

Justinian's statement that homosexuality

earthquakes.'^^

As

belief in

it,

Emperor

was the cause and

of

his apparent

indifference to the question of evidence, are at points traceable to

an undiscussed assumption. This

^^

The Enjorcement

^^

Novels, 77 Cap.

i

of Morals, pp. 14-15.

and

141.

50

is

that all moral-

ity

—sexual

morality together with the morality that for-

bids acts injurious to others such as killing, stealing, and

dishonesty deviate ate

—forms a single seamless web, so that those who

from any part

from the whole.

are likely or perhaps It is

bound

to devi-

of course clear (and one of the

oldest insights of poUtical theory) that society could not exist

without a morality which mirrored and supplemented

the law's proscription of conduct injurious to others. But there

again no evidence to support, and

is

the theory that those

much

to refute,

who deviate from conventional

sexual

morality are in other ways hostile to society.

There seems, however,

to be central to

Lord Devlin's

thought something more interesting, though no more convincing, than the conception of social morality as a seamless

web. For he appears to move from the acceptable proposition that

some shared morality

is

essential to the existence

of any society to the unacceptable proposition that a society is

identical^'

ment

of

mount sition

its

with

its

morality as that

history, so that a

change in

to the destruction of a society.

might be even accepted

is

at

its

any given mo-

morality

is

tanta-

The former propo-

as a necessary rather

than an

empirical truth depending on a quite plausible definition of society as a

body of men who hold

common. But strictly, it ^-

certain

the latter proposition

would

Justice

absurd.

Taken

prevent us saying that the morality of a

WoUheim, "Crime, Devlin," Encounter, November 1959, p. 34.

See, for this important point, Richard

and Mr.

is

moral views in

51

Sin,

given society had changed, and would compel us instead to say that

taken

its

what

it is

one society had disappeared and another one

place.

But

for the

it is

same

only on this absurd criterion of

society to continue to exist that

it

could be asserted without evidence that any deviation from a society's shared morality threatens It is

with

its

existence.

clear that only this tacit identification of a society

its

shared morality supports Lord Devlin's denial

that there could be such a thing as private immorality his

comparison of sexual immorality, even when

place "in private," with treason. deviations

doubt

it is

from conventional sexual morality

by the law and come rality

No

might change

to

it

and

takes

true that

if

are tolerated

be known, the conventional mo-

in a permissive direction,

though

this

does not seem to be the case with homosexuality in those

European countries where even

if

it is

not punishable by law. But

the conventional morality did so change, the society

in question

would not have been destroyed or "subverted."

We should compare such a development not to the overthrow of government but to

change in

its

violent

a peaceful constitutional

form, consistent not only with the preserva-

tion of a society but with

its

advance.

Ill

ENFORCEMENT

VARIETIES OF

In the last lecture

treme form of the

I

distinguished a moderate and an ex-

thesis that the criminal

law might

justifi-

ably be used to enforce morality. According to the moderate thesis, there

is

certainly a contrast

viously harmful to others (such as

between crimes ob-

murder

or assault)

mere immoral conduct, forbidden by law, which

and

takes

place between consenting adults in private. This contrast

seems

at first sight to

and punishment of the

hibition of

warrant our regarding the legal prolatter as the

enforcement

morahty "as such." Nonetheless, according

ory,

we

once

necessary for

immoral

act,

grasp the truth that a society's morality its

very existence,

however

private

long run be harmful because ciples

on which

existence.

(which

is

to this the-

society

So on

this

assumed

is

it

becomes

clear that

is

any

its

performance, must in the

"it

threatens the moral prin-

based" and so jeopardizes

society's

view the enforcement of morality

to be required for

53

its

preservation)

is

necessary for the very existence of society and

is

justified

for that reason.

The extreme

thesis has

which

w^ays clear

morality

is

them

of

urge. According to

many

some

its

and

variants,

not

it is

al-

advocates are concerned to

variants, the legal

only of instrumental value:

it is

enforcement of

merely a means,

though an indispensable one, for preserving morality, whereas the preservation of morality in itself,

which

justifies its legal

to other variants, there

is

something

enforcement of morality.

all varieties

of the extreme thesis

its

the end, valuable

enforcement. According

in the legal

ate thesis, they

is

is

intrinsically valuable

What

is

common

that, unlike the

do not hold the enforcement

of morality or

preservation to be valuable merely because of their bene-

consequences in securing the existence of

ficial

It is to

the moderate thesis. For

ment

if

we

thesis

its

the continued existence of society

from the

is

we

neces-

should), then

something distinguish-

preservatioD^x)£uts morality.

It is,

desirable consequence of the preservation of

its

in fact, a

morality,

the assumption that the enforcement of morality

identical with or required for

sirable

is

existence as a statement of fact (as the analogy

with the suppression of treason suggests

and, on

and

interpret his crucial state-

that the preservation of a society's morality

sary~For

ai)le

society.

be observed that Lord Devlin hovers somewhat

ambiguously between one form of the extreme

is

to

moder-

consequence

justifies the

54

its

preservation, this de-

enforcement of morality.

So interpreted, Lord Devlin

and

thesis

to

it is

his

argument

is

an advocate of the moderate

a utiUtarian one.

is

that his crucial statement of fact

The

evidence itis UtiUtarianism without benefit of ;

on the other hand, we interpret immoraUty, even in

f^cts.

his statement that

If,

any

private, threatens the existence of soci-

not as an empirical statement but as a necessary truth

ety,

(as the absence of evidence suggests

continued existence of a society

from the preservation

On by

objection

unsupported by

is

this its

of

its

is

we

should), then the

not something different

moraHty;

it is

identical with

view the enforcement of morality

is

it.

not justified

valuable consequences in securing society from dis-

solution or decay.

simply as identical with or

It is justified

required for the preservation of the society's morality. This is

form

a

of the extreme thesis, disguised only by the tacit

identification of a society

with

its

morality which

criti-

I

cised in the last lecture.

Stephen tain

is, I

think, a

forms of the extreme

more

consistent defender of cer-

thesis

than Lord Devlin

is

of the

moderate one. But before we consider the argument

it is

important to recall the complexities contained in the apparently simple notion of the legal enforcement of any

kind of conduct.

We

have already distinguished two

pects of enforcement: the first sists

in securing,

is

that of coercion

as-

and con-

by the threat of legal punishment, that

people do or abstain from doing what the law enjoins or forbids; the second

is

that of the actual

55

punishment of

who

those

have broken the law. Besides these forms of

enforcement there are others which

it is

important not to

overlook in considering the legal use of "force." Thus steps

may

be taken which render disobedience to the law im-

and

possible or difficult,

An

example of

given to seize

this well

officials

known

rather than punish

it

England

in

enforcement

actually

in

is

A

engaged in breaking the law or threatening

also used for

punishment should not blind us

fact that the

method

of enforcement

they submit, of those

No

lasts.

who

and the "cease and

daily-mounting fine

form

means

The most common form

order,

of

doubt the

is

in is

first

of these

to the differ-

comply with

as is

Court

a Court's

under which a

long as disobedience usually presented as a

punishment for "contempt of Court."

form

do

the imprisonment, until

desist orders"

imposed

to

of pressure used are

is

An

apology

usually required to

terminate imprisonment for contempt, but as a

juris-

England and America

refuse to

as well as obedience to the

is

some

to

the use of pressure to induce those

The

of this

power

further distinguishable aspect of

so to desist.

ence.

the

it.

law authorises the physical closing of prem-

used as brothels.

legal

is

by the Obscene Publications Act of 1857

and destroy obscene publications; and

dictions the ises

so frustrate

its

primary use

of pressure available to those interested in se-

curing compliance with the law.

These distinctions are important for present purposes, because the extreme thesis that the legal enforcement of

56

morality in itself

is

justified

may need

not by

its

consequences but as a value

separate consideration with regard to

different aspects of enforcement.

Moreover, reflection on

these different aspects will force us to question the assumption, certainly

made by Lord Devlin and

possibly also by

Stephen, that the enforcement of a morality and

preser-

its

vation are identical or at least necessarily connected.

Enforcement

as coercion,



If

we

consider the

first as-

pect of enforcement, namely, coercion by threats, a very great difference

is

apparent between inducing persons

through fear of punishment are

harmful

to others,

to abstain

from

and inducing them

actions

which

to abstain

actions which deviate from accepted morality but

no one. The value attached stand for the protection of ;

to the first

human

is

from

harm

easy to under-

beings from murder or

violence or others forms of injury remains a good what-

ever the motives are by

from

which others

these crimes. But

where there

are induced to abstain is

no harm

to be pre-

vented and no potential victim to be protected, as

where conventional sexual morality

the case it is

even is

difficult to if

is

is

often

disregarded,

understand the assertion that conformity,

motivated merely by fear of the law's punishment,

a value

worth pursuing, notwithstanding the misery and

sacrifice of

value to

freedom which

it

involves.

mere conforming behaviour,

The

attribution of

in abstraction

from

both motive and consequences, belongs not to morality but to taboo.

This does not mean that we cannot

57

intelligibly

attribute value to lives dedicated to ideals of chastity or self-denial.

Indeed, the achievement of self-discipline not

only in sexual matters but in other fields of conduct must

on any theory of morality be But w^hat is_valuable here

a constituent of a

good

life.

is_£olu7i tary restraint, not sub-

mission to coercion, v^hich seems quite empty of moral value* It

may of course be argued

legally enforced conformity

indispensable as a rality

which

"The

fact that

of

is

though for these reasons

no value

in

itself, it is

of teaching or maintaining a

men are hanged

for

murder

is

one great

rea-

There

so dreadful a crime.'"

nothing self-contradictory in such theories that the threat

of legal

punishment

is

required to create or maintain the

voluntary practice of morality. But these are theories

little

is

very

evidence to support the idea that morality

is

best

facts,

taught by fear of legal punishment. tainly taught

and sustained without

taught with

it,

there

is

punishment may remain Enforcement legal ^

as

enforcement

Much it,

morality

s.

6r.

The

is

cer-

and where morality

the standing danger that fear of the sole motive for conformity.

punishment.

—The

second aspect of

consists not in the threat but in the

Report of the Royal Commission on Capital Punishment

8932)

re-

and there

quiring the support of empirical

is

yet

mo-

most part practised voluntarily.

for the

why murder is considered

son is

is

means

that,

quotation

is

from Stephen's

ishment in Fraser's Magazine, June 1864,

58

article

p. 761.

on

(CMD

capital

pun-

I

punishment on

actual infliction of

what value

this

offenders.

we

ask

can have where the conduct punished

not harmful, the most obvious answer

is

punishment

not that

is

is

a retributive

"theory" of punishment: the claim that what infliction of

If

justifies the

has beneficial conse-

it

quences on society or on the person punished, but that pain is

morally the appropriate or "fitting" return for moral

evil done.

I

cannot here undertake a

punishment, but

tion of this theory of

tion to

I

will

draw

punishment by

its results,

but simply as some-

thing called for by the wickedness of a crime,

most

and perhaps only

plausible,

intelHgible,

crime has harmed others and there

and

a victim.

Even

is

felt

edge the simple claim that

tempted

made

certainly

where the

both a wrongdoer

it is

at

to suffer.

I

doubt

utili-

times to acknowl-

right or just that one

has intentionally inflicted suffering on

be

is

the most faithful adherents of

tarian doctrine must have

self

atten-

A theory which does not attempt

one sahent point.

to justify

examina-

full-scale

if

who

others should him-

anyone, reading the rec-

ords of Auschwitz or Buchenwald, has failed to feel the

powerful appeal of reflective of those

this principle;

who

perhaps even the most

supported the punishment of the

criminals concerned were

moved by

this principle rather

than by the thought that punishment would have beneficial

future consequences. But the strength of this form

of retribution as well as

is

surely dependent

an offender; for where

59

on there being this is the case,

a victim it is

pos-

sible to

conceive of the punishment as a measure designed

wrongdoer prospering when

to prevent the

suffer or

his victims

have perished. The principles requiring

this to

be done are certainly analogous to those of justice or ness in the distribution of happiness ciples

which permeate other

myself argue that even certainly all

this

and suffering

areas of morality.

analogy

is

I

fair-

—prin-

should not

sufficient.

Yet

it is

something which should prevent our dismissing

retributive theory out of hand.

But where there

is

no

victim but only a transgression of a moral rule, the view that

punishment

is still

called for as a proper return for

the immorality lacks even this support. Retribution here

seems to

rest

on nothing but the implausible claim

morality two blacks

make

that in

a white: that the evil of suffer-

ing added to thjeeyil of immorality as its^unishment makes a moral good.

RETRIBUTION AND DENUNCIATION In his chapter on Mill's doctrine of liberty in relation to morals Stephen was principally concerned to identify

and expose the

human

inconsistencies

and

false

assumptions about

nature and society by which, as he believed. Mill's

arguments were

vitiated.

He

devoted comparatively

space to explaining the positive grounds for his that the criminal

own

little

claim

law should be used not only for protec-

tion "against acts dangerous to society" but as a "persecu-

60

tion of the grosser

forms of

vice.'"

It is

not, indeed, easy

to disentangle from his arguments any very precise account

of the values w^hich he thought the legal enforcement of

The most prominent

morality constituted or secured.

and

to

many

the most distasteful

on these matters

—feature of his thought on the legitimacy

his general insistence

is

or "healthiness"^ of hatred or resentment for the criminal

and the

desire for revenge

from his emphasis on positive case

on

tive theory:

this

a simple

that

on him.

theme

It is

easy to conclude

that Stephen relies for his

and indeed crude form of

punishment

of the criminal

is

retribujustified

because "the feeling of hatred and the desire of vengeance are important elements in

such cases to be

manner.

human

nature which ought in

satisfied in a regular public

and

legal

——

5)4

Stephen's insistence on the legitimacy of hatred and of the wish for revenge

is

certainly central in his

whole

out-

look on punishment, and later English judges have tached similar importance to them.

The former Lord

Chief Justice of England, Lord Goddard, in the bate "I

on

capital

do not

see

punishment

how

it

in the

House

last de-

of Lords, said,

can be either non-Christian or other

than praiseworthy that the country should be wilHng

avenge crime.'" But

at-

it

would not be

2

Liberty, Equality, Fraternity, p. 162.

3

Ibid., pp. 162, 165.

5

198 H.L.

'

fair to

Ibid., p. 162.

Debates (5th Series) 743 (1956)-

61

to

Stephen to

C,5

present this form of retributive theory as the whole of his doctrine; for there

is

arguments. This

his

at least

one other element woven into

which

will ap-

Though Stephen

himself

shall call, for reasons

I

pear, the denunciatory element.

does not distinguish this from his theory,

it is

worth

own form

isolating for scrutiny, because

largely in the conception of the function

ft

of

punishment which

EngHsh lish

judiciary

and

is

on the

legal

to apply

solidarity,

many

enforcement of morality

conservative Eng-

is

to notice that he, like

that the society to

marked by

is

and

moral code.

which

his doctrine

a considerable degree of moral

deeply disturbed by infringements of

Just as for

Lord Devlin the morality

forced by law must be "public," in the sense that erally shared

and

identifiable

tolerance, indignation,

and

by the

triple

disgust,"^ so for

in the

cornmon

junequivocally

to

majority must be overwhelming.""

Stephen "you as expressed

of Morals, p. 17:

It is

possible that in satisfied in

"They are the

hind the moral law." Liberty, Equality, Fraternity, pp. 173-74.

62

and

able to punish a moral

mid- Victorian England these conditions were The Enforcement

gen-

of "in-

practice of society does not strenuously

condemn ... To be

its

be en-

it is

marks

cannot publish anything which public opinion

^

figures

important for the understanding of Stephen's views

Lord Devlin, assumes

^

it

justification

even today characteristic of the

shared by

is

and

and American lawyers.

It is

is

of retributive

forces be-

relation to "that considerable

number

Stephen were treated

cording to

of acts"

which

ac-

merely because

as crimes

they were regarded as grossly immoral. Perhaps an "over-

whelming moral majority" then

actually did harbour the

healthy desire for revenge of which he speaks and which is

to be gratified

would be

sociologically naive to

sexual morality

an

is

The

concerned.

official

guilty.

But

it

assume that these condi-

contemporary England

tions obtain in

service to

by the punishment of the

at least as far as

fact that there

is

lip

sexual morality should not lead us to

neglect the possibility that in sexual, as in other matters, there

may

be a number of mutually tolerant moralities,

and that even where there tice

and

belief, offenders

or resentment but with

is

some homogeneity

may

be viewed not with hatred

amused contempt

or pity.

In a sense, therefore, Stephen's doctrine, and

Lord

Devlin's,

may seem

to

of prac-

hover in the

firma of contemporary social reality;

air it

much

of

above the terra

may

articulated construction, interesting because

it

be a wellreveals the

outlook characteristic of the English judiciary but lacking application to contemporary society. But with this possibly illusory picture of society in

writes as

if

mind, Stephen sometimes

the function of punishment were not so

retributive as denunciatory; not so

much

much

to gratify feel-

ings of hatred or revenge as to express in emphatic form

moral condemnation of the offender and to "ratify" the morality which he has violated. This idea is present in

63

where Stephen

Liberty, Equality, Fraternity in a passage

speaks of the criminal law giving "distinct shape to the

^^3^ V \M^^^^^^---^^^

feeling of anger" as well as "distinct satisfaction to the de-

vengeance."^

^^^^ ^^^

elaborately and

The same

idea

however, more

is,

clearly expressed in his History of the

Criminal Law:

The

sentence of the law

to the

is

moral sentiment of

the public in relation to any offence

^hoTwax.

It

what

a seal

is

to

converts into a permanent final judgment

what might otherwise be

a transient sentiment

.

.

.

In short the infliction of punishment by law gives

and solemn ratification and justifiwhich is excited by the commission of the offence and which constitutes the moral or popular, as distinct from the conscientious, sanction of that part of morality which is also sanctioned by the crimiThe forms in which deliberate anger nal law. and righteous disapprobation are expressed, and the execution of criminal justice is the most emphatic of such forms, stand to the one set of passions in the same relation which marriage stands to the other [sexual definite expression

cation to the hatred

.

.

.

passions].^

There

is

no doubt much

particular,

is

is

unclear in this theory

clear,

and

it is

which a

it

expresses.

theme which

But

later

its

in

A History

of the Criminal Latv of England,

64

II,

general

judges have

«P. 165. ^

;

Stephen speaks mysteriously of the punishment

"justifying" the feeling drift

that

81-82.

Thus

echoed.

in our

own day Lord Denning

in his evi-

dence to the Royal Commission on Capital Punishment said:

The punishment for flect

grave crimes should adequately

re-

the revulsion felt by the majority of citizens for

them.

ment

It is

as

a mistake to consider the object of punish-

being deterrent or reformative or preventive

and nothing else. The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime and from this point of view there are some murders which in the present state of opinion demand the most emphatic denunciation of all, namely the death penalty.^^

Notwithstanding the eminence of

conduct not harmful to others, seems to

amalgam

of ideas.

at the cost of

human

is

moral condemnation ?

Is

the

mode

of expression.

mere expression of

a thing of value in itself to be pur-

The

we may punish offenders prevent harm or suffering or

idea that

against a moral code, not to

even the repetition of the offence but simply ^^

a strange

treats the infliction of suffering as a

this really intelligible?

sued at this cost

on

suffering the bare expression of moral

uniquely appropriate or "emphatic"

But

rest

represents as a value to be pursued

It

condemnation, and

legal advocates,

punishment, especially when applied

this justification of

to

its

as a

means

Report of the Royal Commission on Capital Punishment,

65

s.

of

53.

venting or emphatically expressing moral condemnation,

uncomfortably close to

human

other remains to be faced.

if

punishment of offenders

the

an appropriate way of ex-

is

pressing emphatic moral condemnation in

an expression of

sacrifice as

we waive this objection anWhat is meant by the claim that

But even

religious worship.

which moral condemnation

is

denunciation

The normal way

?

expressed

is

by wards, and

what

it is

not clear,

why

a solemn public statement of disapproval

if

is

really

is

is

required,

would not

be the most "appropriate" or "emphatic" means of express-

ing

Why

this.

should a denunciation take the form of

punishment ? It is, I

what

the advocates of this

mean by an "emphatic"

denunciation and the

think, probable that

theory really

"appropriate" expression of moral condemnation that

is

effective

in

instilling

is

one

strengthening in the

or

offender and in others respect for the moral code which

has been violated. But then the theory assumes a different character;

it is

no longer the theory

mentUmorality becomes

tlie

is

a value apart

that the legal enforce-

from

its

consequences;

it

theory that the le^al enforcement of morality

is

valuable_hecause-iL.preierves^an existing morality. This

is

no doubt the most

But unless it,

it is

plausible

treated, as

form

Stephen

at

of the extreme thesis.

times appears to treat

as intuitively obvious, to be accepted

without argument

or appeal to any general principle of critical morality,

open

to a variety of

major

criticisms.

66

it is

The

of these criticisms concerns a matter of fact

first

already mentioned:

does operate in the

the assertion that legal enforcement

manner supposed

maintain an ex-

to

istent social morality requires evidence in support, least in relation to sexual

No

morality there

is little

doiibt the issues here are quite complex:

to be

and

found.

any

in

at

full

investigation of the part played by legal prohibition in sus-

taining the conviction that conduct

is

morally wrong,

we

should have to distinguish between various types of immo-

Some,

rality.

sincerely

like fornication,

condemned

majority of

men;

though they may be quite

morally, represent temptations to a

others, such as incest or homosexuality,

which most men may

are practices for

disgust. In relation to the latter,

ing

legal prohibition

if

were

feel aversion

would be very

it

there

is

on

these matters

"intolerance, indignation,

surpris-

a significant factor in pre-

serving the general sense that the practice if

and

is

immoral. For

what Lord Devlin

calls

general

and disgust" and Stephen

calls

"an overwhelming moral majority" (and only where these exist

do they think

legal

punishment of immorality

tifiable), the conviction that

wrong from

is

are "unnatural."

The

jus-

such practices are morally

surely inseparable in the

instinctive repulsion

is

mind

of the majority

and the deep feeling

that they

notion that the overwhelming moral

majority w^ould or even could change heart morally and shed these deep instinctive feelings, if the State did not reflect in legal

punishment

their

67

moral views on homo-

seems fantastic and

sexuality,

is

quite at variance with the

experience of those countries where homosexuaUty be-

tween consenting adults in private

Of

course this

is

is

not legally punished.

not to deny that where the law forbids

these practices there will be

some who

abstain

from them

only from fear of punishment or because, in Stephen's phrase, they respect the law's "solemn ratification" of ex-

however much

istent^ocial morals instincts.

nothing ally

But

their abstention

it

own

frustrates their

on these grounds contributes

to the general sense that these practices are

mor-

wrong.

The

real solvent of social morality, as

Devlin has pointed endorse

its

critical discussion.

engenders

out,^^ is

restrictions

one

critic of

Lord

not the failure of the law to

with legal punishment, but free

It is this

—or the self-criticism which

it

—that forces apart mere instinctive disgust from

moral condemnation.

If in

our

own day

the "overwhelm-

ing moral majority" has become divided or hesitant over

many

issues of sexual morality, the

been matters

to

which the

main

catalysts

free discussion of sexual morals,

in the light of the discoveries of anthropology

chology, has

drawn

have

attention.

and psy-

These matters are very

verse: they include the harmless character of

much

di-

sexual

deviation, the variety of different sexual moralities in dif-

ferent societies, the connection between restrictive sexual

morality and harmful repression. ^^

Woliheim, "Crime,

Sin,

and Mr.

68

Though few now Justice Devlin," p. 40.

think

it

justifiable to prohibit free discussion

impact on prevalent

aware that

on account of

morality, Stephen

social

his general doctrine

committed him

when he wrote

thought that

ciple but

it

was well

He

to this.

quite frankly stated that he had no objection to

its

it

in prin-

was no longer

practicable.'"

THE PRESERVATION OF MORALITY AND MORAL CONSERVATISM This

last

consideration brings us to what

central issue in the extreme thesis. trary to

and

its

really

is

much

it

moral mechanisms a moral code

Let us suppose, con-

is

a realistic one:

is

really does sustain the sense that

immoral and without

prevalent morahty

would change

central question

is:

their

punishment the

in a permissive direction.

Can anything

or nothing be said

to support the claim that the prevention of this

the maintenance of the moral status

quo

'^^

legal

enforcement

entails

}

Liberty, Equality, Fraternity, Chapter

82-84.

mo-

human

mis-

69

Is it

2,

change and

in a society's

rahty are values sufficient to offset the cost in

which

an

that they are deeply disturbed

infringed even by adults in private; that the

is

the conduct

ery

that there

in sexual matters supported by

punishment of offenders

The

really the

evidence, that Stephen's picture of society

overwhelming majority and

when

is

simply a blank

especially pp. 58, 81,

assertion, or does

ing what value

it

rest

on any

critical principles

with other things of

said to be of value here

is

connect-

?

Here

There are

certain discriminations are needed.

three propositions concerning the value of preserving so-

morality which are in perennial danger of confusion.

cial

The

of these propositions

first

social morahties,

provision in

whatever

some degree

else

social morality

volves.

It is

may

make

contain,

life,

and protection from de-

harm, there will always be much

which

in terms of these

they

is

all

for such universal values as in-

dividual freedom, safety of liberately inflicted

the truth that since

is

worth preserving even

same values which

legal

in

at the cost

enforcement

in-

perhaps misleading to say with Lord Devlin

that social morality, so far as

it

secures these things,

is

of

value because they are required for the preservation of society;

on the contrary, the preservation

society

for

is

of value because

human

It is

among

of any particular

other things

indeed arguable that a

human all in its

society in

morality

which

such a society could be of no practical value for In conceding this

of following

of

were,

human

be-

in thinking of social morality as

all its

existence of the society

if it

much, however, we must beware

Lord Devlin

web and

these

neither an

is

empirical nor a logical possibility, and that even

a seamless

secures

beings some measure of these universal values.

values are not recognised at

ings.

it

provisions as necessary for the

whose morality

70

it is.

We

should

with Mill be alive to the truth that though these universal values

must be secured,

from

vive individual divergences in other fields lent morality, but profit

Secondly, there

essential

society can not only sur-

from them.

the truth, less familiar and

is

preva-

its

less

easy

to state in precise terms, that the spirit or attitude of

mind

w^hich characterises the practice of a social morality

some-

thing of very great value and indeed quite foster

any

and preserve

in

any

is

vital for

men

to

For in thepractice_of_

society.

social morality there are necessaril y involved

what may

be called formal values as distinct from the material values of

its

with

particular rules or content.

In moral relationships

otTiefs the individual sees questions of

conduct from

an impersonal point of view and applies general partially to himself

and

to others;

he

is

made aware

takes account of the wants, expectations, others; he exerts self-discipline

rules im-

of

and

and reactions

and control

of

in adapting his

conduct to a system of reciprocal claims. These are univerlal virtues

constitute the specifically moral

and indeed

tude to conduct.

conforming their v alue

It is

to the

is

true that these virtues are learnt in

moraUty

some

of

We

have only to conduct the Hobbes-

lan experTmenToI imagining these to see that they are vital for the

of

particular society, but

not derived from the fact that they are there

accounted virtues.

form

atti-

human

life

principles of critical

and any

virtues totally absent

conduct of any cooperative

successful personal

morahty which paid the

life.

No

least atten-

tion to the

most elementary

conditions in which

human

facts of

human

Hfe has to be led could pro-

pose to dispense with them. Hence of morality to is

is

a value.

if

meant the preservation

conduct and

formal values,

its

nature and the

But, though true, this

it is

is

by the preservation

of the moral attitude certainly true that

it

really irrelevant to the

issue before us; for the preservation of morality in this

sense

is

vation

given

not identical with and does not require the preser-

from change

moment

of a society's

moral code

of that society's existence;

The

time in a

society's existence

where

does

it

spirit

it

The

specific

use of legal punishment to freeze

into immobility the morality

it

any

fortiori

rules.

and the ultimate relaxation of

institutions.

animating

its

at

conduct has often survived the criticism,

to

the infringement,

moral

it is

and a

does not require the legal enforcement of

moral attitude

as

may

dominant

at

a particular

possibly succeed, but even

contributes nothing to the survival of the

and formal values of

social morality

and

may do much to harm them. From the preservation of morality in this sense which is s o clearly a value we rn ust, then, distinguish mere moral conservatism. This latter amounts to the proposition that

^he

preservation

cial its

from change

morality, whatever

its

of any existent rule of a so-

content,

is

a value

and

legal enforcement. This proposition would be

intelligible if

status

we

could ascribe to

all social

justifies

at least

morality the

which theological systems or the doctrine

of the

Law

some fundamental

of Nature ascribes to at least,

some general

principle

would have been adduced

to support the claim that preservation of

morahty was

a value justifying

Then,

principles.

its

legal

any rule of

social

enforcement some;

thing would have been said to indicate the source of this

The

asserted value. to the case in

application of these general principles

hand would then be something

cussed and argued, and moral conservatism a

form

of critical morality to be used in the criticism of

— as when such general principles — a brute dogma, would not then be

social institutions. It

sociated

to be dis-

would then be

from

all

it is

dis-

asserting that the preservation of any social morality necessarily

outweighs

its

of freedom. In this positive morality

^~1^o"3out)t a all social

cost in

human

misery and deprivation

dogmatic form

from the scope

critical

in effect

morality based on the theory that

morality had the status of divine

now seem

withdraws

of any moral criticism.

of eternal truth discovered by reason

reasons

it

plausible. It

is

commands

would not

perhaps

or

for obvious

least plausible in

relation to sexual morals, determined as these so obviously

are by variable tastes

and conventions. Nonetheless, the

attempt to defend the legal enforcement of morality on these Hues

would be something more than

argued assertion that

it

was

justified. It is

that great social theorists like

among tive

the simple un-

worth observing

Burke and Hegel, who were

those most anxious to defend the value of the posi-

morahty and customs

of particular societies against

73

utilitarian

and

rationalist critics, never

assertion that these

regarded the simple

were things of value

stead they deployed theories of

human

tory in support of their position.

as adequate.

In-

nature and of his-

Burke's principal argu-

ment, expressed in terms of the "wisdom of the ages" and the "finger of providence,"

is

in essence an evolutionary

one: the social institutions which have slowly been devel-

oped in the course of any

commodation likely to be

to the

more

an

society's history represent

needs of that society which

satisfactory to the

than any ideal scheme of social

life

mass of

is

ac-

always

members

its

which individuals could

invent or any legislator could impose. For Hegel the value of tlre""established institutions of any particular society rested

on an elaborate metaphysical doctrine, not

easily

comprehensible and certainly not capable of adequate

ment

in the single sentence

outline,

it is

which

I

devote to

the doctrine jha^he history of

eties is a process

by which the Absolute

it

state-

here.

human

In

soci-

Spirit nianifests

itselLand that each stage in this development

is

a rational

or even a logical step and so a thing of value.

However questionable particular case

may

be,

this

it is

acceptance or rejection;

it

background of theory

in

any

yet there for rational criticism,

prevents the assertion of the

value of social institutions being merely dogmatic.

The

assertion will stand or fall with the general theories de-

ployed in that

its

support.

It

should, however, be

remembered

an evolutionary defence of tradition and custom such

74

as

Burke made against the

affords

little

rationalist revolutionary or critic

support for the enforcement by law of social

morality. In Burke, perhaps because he

was

a

Whig, how-

ever conservative, the value of established institutions sides in the fact that they

the free, though

have developed

tain the moral

would be

as the result of

no doubt unconscious, adaptation

to the conditions^ of their lives. status

quo

at

To

re-

of

men

use coercion to main-

any point in

artificially to arrest the process

a society's history

which

gives social

institutions their value.

This distinction between the use of coercion

we

morality and other methods which serve

to enforce

in fact use to pre-

such as argument, advice, and exhortation,

it,

very important and present topic.

much

is

both

neglected in discussions of the

Stephen, in his arguments against Mill,"

seems most of the time

to forget or to ignore these other

methods and the great importance which Mill attached them. For he frequently argues liberty

meant

that

men must

as

if

Mill's doctrine of

never express any convictions

concerning the conduct of their fellow citizens duct

is

not harmful to others.

that "the state or the public"

to

is

It is

if

that con-

true that Mill believed

not warranted "for the pur-

poses of repression or punishment"^^ in deciding that such

conduct

is

good or bad. But

it is

not true that he thought

that concerning such conduct or "the experiments in 1^

Liberty, Equality, Fraternity, pp. 126-42.

^* Ibid., p.

137;

On

Liberty, Chapter

75

5.

liv-

ing" which to

Nor

it.'""'

represents "no one else has anything to say

it

did he think that society could "draw a line

where education ends and gins."^^'

In

making

perfect moral indifference be-

these ill-founded criticisms Stephen not

only misunderstood and so misrepresented Mill, but he

showed how narrowly he himself conceived and the processes by which cern throughout his essay

For

sustained.

it is

of morality Mill's con-

to restrict the use of coercion,

is

not to promote moral indifference. in the coercion or "constraint" of

It is

true he includes

which he disapproves not

only legal enforcement of morality but also other peremptory forms_of social pressure such as moral

mands

But

for conformity.

is

it

its

support

we must

be

silent

we cannot and

It

would be

we have and

a great

to suppose that

pretends that

it

human

othersconduct in

life

one of

show

the

should use:

misunderstanding of

is

use

indifferent.

In Chapter 4 of his essay Mill takes great pains to

other resources which

de-

a disastrous misunder-

standing of morality to think that where coercion in

blame and

this doctrine

selfish indifference

which

beings have no business with each

and

that they should not concern

themselves about the well-doing or well-being of one ^"another unlej^theirowjLJntexe st

man

Beings

better

owe

involv ed.

from the worse and encouragement

former and avoid the '^

is

latter.

Liberty, Equality, Fraternity, p. 141.

^^ Ibid., p.

.

.

.

Hu-

to each other help to distinguish the

170.

76

to

choose the

Discussion, advice,

argument— all

the individual "the final judge,"

used in a society where freedom

may

may

according to Mill be

properly respected.

is

even "obtrude" on another "considerations

judgment and exhortations

may

in extreme cases

ment his

these, since they leave

company and caution

to aid his

to strengthen his will."''

"warn" him

or feelings of distaste

We We

of our adverse judg-

and contempt.

others against

We

it.

may avoid Many might

think that Mill here comes perilously near to sanctioning coercion even though he regards these things as "strictly inseparable

and never if

from the unfavourable judgments

to

of others"'^

be inflicted for the sake of punishment. But

he erred in that direction,

it

certainly clear that he

is

recognised the important truth that in morality

we

are not

forced to choose between deliberate coercion and indifference.

MORAL POPULISM AND DEMOCRACY Mill's essay

On Liberty, like Tocqueville's book Democ-

racy in America,

was

a powerful plea for a clearheaded

appreciation of the dangers that accompany the benefits of democratic rule.

view,

power

was not

greatest of the dangers, in their

that in fact the majority

might use

their

to oppress a minority, but that, with the spread of

democratic ideas, ^'

The

On

it

might come

Liberty, Chapter 4.



77

to be

Ibid,

thought unobjec-

do

tionablc that they should

were part of the price in democratic

For Mill, these dangers

so.

to be paid for all that

government.

He

thought the price certainly

was much concerned

w^orth paying; but he

so valuable

is

to

remind the

supporters of democracy of the danger and the need for

"The

vigilance.

limitation of the powder of

over individuals loses none of

power

holders of

— hat

sistent

was Mill on

was

essay

that ever trasts

to the

st rongest

when

this

theme

tTiat,

written."^"

Morley

as

most

the

comSo

party therein."^^

in a sense "one of the

was

importance

its

are regularly accountable to the

munity

is

government

in-

said, his

aristocratic

books

Certainly Mill's doctrine con-

very sharply with the emphasis placed by Stephen

on the importance

on the function

in

of

moral matters of public opinion, and

punishment

as

moral sentiment of the public." Stephen

tells

an "expression of the

Morley indeed

us in his Preface,^^ that whei:£_Mill

-protect the minority

would

from coercion by the majority,

pheiLsj^rinciples w-ould expose

them

to

Ste-

it.

Stephen repudiated Morley's charge, and unfair.

said, as

For though Stephen's disclaimer

is

it

was perhaps

not very easy

to reconcile with his insistence on the importance of "the

overwhelming moral majority,"

it

complex position does not reduce

to

^^

On

""

Quoted

-^

Ibid., p. xvii.

Liberty, Chapter

may

well be that his

anything so simple

as

i.

in the Preface to Liberty, Equality, Fraternity, p. xv.

78

the view that a popular

ishment was

justified

demand

for coercion or legal pun-

simply because

was popular or the

it

cry of the majority. Nonetheless, Mill's fear that such a

doctrine might spread with democracy

surely justified.

is

seems fatally easy to believe that loyalty

It

principles entails acceptance of

to

democratic

what may be termed moral

populism: the view that the majority have a moral right to dictate

of

how

all

should

democracy which

shall devote the

the confusion

The

still

live.

This

remainder of

on which

central mistake

it

is

first

There are

power

best entrusted to

is

is

beyond

many

that

criticism

one can be a democrat

of these, but

second. Mill and ^^

No

I

this lecture to identifying

from the unacceptable claim

never be resisted.

and

liberty,

a failure to distinguish the ac-

majority do with that power

accept the

a misunderstanding

rests."

ceptable principle that political

the majority

is

menaces individual

what

the

and must

who

does not

no democrat need accept the

others have

combined

vestiges of this confusion in

a belief in

Lord Devlin's

latest

contribution to the present topic ("Law, Democracy, and Morality,"

For he there

loc. cit.).

lator will if

(p. 639) asserts that "in a

assume that the morals of

his society

democracy

a legis-

are good and

true;

he does not he should not be playing an active part in govern-

ment.

.

.

.

BulJieJia5-nGt-to-jy-QU_ch for their goodness

His mandate

is

and

truth.

to preserve the essentials of his society, not to re-

construcfTHemaccording

to his

own

ideas."

But elsewhere

(p. 644)

EF'conced^S"that a legislator "has a very wide discretion in deter-

mining how it

ought

far

to be."

he will go in the direction of the law as he thinks Lord Devlin's main concern in this essay is to estab-

79

a

democracy

as the best

—or

least

harmful

— form

of rule

many things democratic government may do. This

with the passionate conviction that there are

which not even

a

combination of attitudes makes good sense, because, though a democrat

committed

is

better than other

forms of government, he

ted to the belief that

To

be resisted.

it is

is

democracy

is

not commit-

perfect or infallible or never to

support this

ther premise, going far is

to the belief that

last

conclusion

beyond the simple

better to entrust political

power

we need

a fur-

assertion that

it

to the majority

than to

must be some

variant,

a selected class. This further premise

secular or otherwise, of the identification of vox populi

One

with vox Dei,

variant,

ferred to in these lectures,

is

which has been frequently

the view that positive morality

supported by an ^yjer whelming moral majority



re-

is

immune

ffonTcriticism. ft IS

not, of course, surprising that these confusions have

been made or that they survive even in democracies Hke the United States,

lish against

where the

rights of individuals are pro-

"the view of the philosophers" {sic) that there

is

no

objection to morality being a matter for the popular vote (p. 642), that morality

"educated

is

men

a question of fact (p. 649),

and that

in a

democracy

cannot be put in a separate category for the de-

moral questions" (p. 643). But as far as positive morality concerned, few would dispute these contentions. The question

cision of is

remains:

What

justifies its

enforcement by law? As

to that,

Lord

Devlin seems content with his previous arguments and his analogy with treason,

criticised above.

80

some extent from

tected to

majorities by a written consti-

tution or in England, where for long the elected member ;

of Parliament has been considered to be the representative

but not the delegate of his constituents. For there are in

working

the actual

of

democracy many

forces likely to

encourage_the behef that the principle of democratic rule

means

th^t the majority are always right.

high-minded

politician

may want what

pliant or passive attitude to

makes

this easier

his duty

is

his dismissal

if

him. But what legislators

to stay in office,

and a

the majority thinks right

than a stern adherence to the theory that

do what he thinks

to

Even the most

and then

to accept

he cannot persuade the majority

to retain

is

right,

understandable as a temptation to elected

may yet be regretted in those

not under a similar

temptation. Whatever other arguments there

may

be for

the enforcement of morality, no one should think even

when popular majority" or tion,

morality

^.justifi

him

supported by an "overwhelming

marked by widespread

and disgust"

quires

is

to

"intolerance, indigna-

that loyalty to democratic principles re-

admit that

its

imposition on a minority

is

ed CONCLUSION

I

short

hope that these three

enough

Instead of

I

shall

make a say a word

to

argument which

I

lectures' are clear

enough and

summary

unnecessary.

detailed

in conclusion about the

have followed.

8i

I

method

have from the be-

ginning assumed that anyone

who

debate, the question whether

it

raises,

or

is

wilHng

to

justifiable to enforce

is

morahty, acce^t s^ the view tha t th e actuaj^ institutions of

any society^_mcludingjts_positive morality, criticism.

Hence

enforce morality

the proposition that is,

Hke

morality requiring for^

principle.

It

its

its

it

is

open

^ire

to

justifiable to

negation, a thesis of critical

support some general

critical

cannot be established or refuted simply by

pointing to the actual practices or morality of a particular society or societies.

Lord Devlin, whose

thesis

I

termed

the moderate thesis, seems to accept this position, but

have argued that the general

critical principle

I

which he

deploys, namely, that a society has the right to take any step necessary for

its

purpose. There

no evidence

is

society requires the

preservation,

inadequate for his

that the preservation of a

enforcement of

His position only appears

is

its

morality "as such."

to escape this criticism

fused definition of what a society

by

a con-

is.

I

have also assumed from the beginning that anyone

who

regards this question as open to discussion necessarily

accepts the critical^ prajnciple, central to_ all morality, that

human misery and t he restriction of freedom are evils thar is why thf- leg nl enforrement of morality calls for tification.

I

;

for jus-

then endeavoured to extricate, and to free from

ambiguity of statement, the general principles underlying several varieties of the

forcement of morality or

more extreme its

thesis that the en-

preservation

82

from change were

valuable apart

from

their beneficial consequences in pre-

serving society. These principles in fact invite us to consider as values, for the sake of

which we should

restrict

human freedom and inflict the misery of punishment on human beings, things which seem to belong to the prehistory of morality

to be quite hostile to

its

They include mere outward conformity

spirit.

rules

and

general

to

moral

induced simply by fear; the gratification of feelings

of hatred for the

wrongdoer or

his "retributory" punish-

ment, even where there has been no victim to be avenged or to call for justice; the inflection of punishment as a symbol or expression of moral condemnation: the lation

from change

sive or barbarous.

of any social morality

is

that

freedom; is

however

insu-

repres-

No doubt I have not proved these things

not to be values worth their price in loss of

mere

it

may

human

suffering

and

be enough to have shown what

offered for the price.

83

it

SELECTED BIBLIOGRAPHY GENERAL

Anon. "The Censor August

as Aedile,"

Times Literary Supplement,

4, 1961.

Devlin, Lord.

The Enforcement

ford: .

Oxford University

Hart,

Academy,

1959.

Ox-

Press, 1959.

no

"Law, Democracy, and Morality,"

Pennsylvania

Maccabaean Lec-

of Morals.

ture in Jurisprudence of the British

Law Review

University of

635 (1962).

H. L. A. "Immorality and Treason," The

Listener, July

30, 1959, p. 162,

"The Use and Abuse Lawyer 7 (1961). .

of the Criminal

Law,"

4

Hughes, Graham. "Morals and the Criminal Law,"

Law Mill,

Oxford 71

Yale

Journal 662 (1962).

John Stuart.

On

Liberty.

London,

1859.

Rostow, Eugene. "The Enforcement of Morals," Cambridge

Law

Journal 174 (i960).

Stephen, James Fitzjames. Liberty, Equality, Fraternity. Lon-

don, 1873.

The

Preface to the second edition of 1874

reply to Morley's defence of Mill in

Liberty," Fortnightly Review,

85

"Mr.

August

i,

is

a

Mill's Doctrine of

1873.

A

Stephen, James Fitzjames.

England. London,

Wollheim, Richard. Encounter,

1883.

History of the Criminal

Volume

II,

Chapter

Law

of

17.

"Crime, Sin, and Mr. Justice Devlin,"

November

1959, p. 34.

LEGAL MATERIAL

Law

American

No.

Institute,

Model Penal Code, Tentative Draft

4, 1955.

Davies, D. Seaborne.

Law," Journal

"The House



Lords and the Criminal

of the Society of Public Teachers of

Law

(1961), p. 104.

Goodhart, A. L. "The als,"

Jones

Law

77

V.

Shaw Case

The Law and

:

Public Mor-

Quarterly Review 567 (1961).

Randall (1774). Lofft. 383.

Report of the Committee on Homosexual OfiFences and Prosti-

(CMD

tution

Shaw

V.

247) 1957

(The Wolfenden Report).

Director of Public Prosecutions (1961) 2 A.E.R. 446

(1962) A.C. 220.

Williams, Glanville.

August Williams,

"Conspiring

to Corrupt,"

The

Listener,

24, 1961, p. 275.

J.

"The Ladies Directory and Criminal ConModern Law Review 631 (1961).

E. Hall.

spiracy," 24

86

INDEX Divine commands,

Adultery, 26, 27

American law, 39

n.,

25,

7,

80

American

18,

Law

Institute

Penal Code,

Model

ad

Goddard, Lord, 61

4,

12

Hand, Learned, 15 Harm, 4, 5, 42, 46, 47 Hegel,

Edmund, 73-75 7,

6'j

34

Bigamy, 38-43 Blasphemy, 44 California,

25-27, 29, 30-34, 48

to,

Bentham, Jeremy,

Burke,

21, fin.

Fornication, 26-1^,

40

15,

Animals: cruelty

23, 73

Enforcement of morals, 4-6, 17-

26-27,

G.W.F,

73-74

Homosexuality,

26-27

•,

13-14

9,

Capital punishment, 58, 61, 65

Indecency, 38-48

Coercion, 21, 57-58

Justice, 3, 37, 60

Consent of victim of crime, 30-

Justification, 20-21, 82

34 Conspiracy

Justinian, 50

corrupt

to

Kelsen, Hans, 3

public

morals, 6-12

Lawrence, D. H., 10

Democracy, 77-81. See jority

also

Ma-

Liberty, 21, 22, 46-48

Los Angeles, 27

opinion

Denning, Lord, 65

Majority opinion, 62-63, 67-68,

Denunciation, 63-66, 83 Devlin, Lord,

45,

67-68

16,

18-19, 20

77-81 Mansfield, Lord,

n.,

28-32, 34, 38, 4I' 48, 49-52,

Mill,

J. S.,

46, 7I' 75-77.

54' 55. 57. 67, 70, 79 n.

87

7,

9

4-6, 14-18, 27-33, 42,

78-79

Morality: and law, 1-4;

Rostow, E. v., 38, 42

critical,

Sexual morality,

17, 19-20, 21, 24, 71, 73, 82;

Morley,

J.,

sexuality; Indecency

28, 78 2, 23,

Shaw

73

Obscenity, lo-ii

t/

Director of Public Pros-

ecutions, 7-12, 25, 44

Paternalism, 30-34, 38

Simonds, Lord,

Polygamy, 38

Stephen,

8, 11, 13, 14,

Punishment: gradation 38, 58-60. See also tion;

9,

44

F., 16, 28,

34-38, 48,

of,

Utilitarianism, 4, 20, 22, 23, 24,

34-

Denuncia-

37, 46-47, 55 Utility, 4

Wolfenden Committee: Report

Justification; Retribution 8,

75-79

Tocqueville, Alexis de, 77

26, 45

Enforcement of morals;

Reid, Lord,

J.

55> 57y 60-64. 67, 69,

Positivism, 2 Prostitution,

25-

Bigamy; Fornication; Homo-

70-74, 83

Natural Law,

5, 6, 18, 22,

27, 67-69. See also Adultery;

positive, 17, 20, 24, 82; value of, 19,

n.

10

of,

13-15, 16, 42

Wollheim,

Retribution, 58-61, 83

88

R.,

51,68

Av;

Philosophy

Law, Liberty, and Morality H.

LA. Hart

"The

three lectures collected in this slim butimportant

resume

a controversy that has

of legal philosophy:

is it

volume

been one of the recurrent themes

the function of law to enforce the moral

convictions of a community, or

is

the function of law^ a

more

limited one Hart has discussed only certain aspects of this enormously miportant problem, but the way in which he has underlined and sharpened the basic issues makes a study of his lectures indispensable reading for anybody who wishes to have an insight into the proper function of law, beyond the easy

rhetoric of

moral indignation."

Forum

—W. Friedmann, Natural Law

"An argument whose power and in a review to

.

.

.

finesse

shame the prevailing standards

this

country."

can hardly be suggested

[Professor Hare's] qualities of

—Marshall

mind and

style

put

of jurisprudential writing in

Cohen, The

New

Yor\ Review

of

Bookj "Hart makes many useful points and distinctions which one Richard Brandt, The Philosophical Review hopes will reach a wide audience."



made with

"Definitions and distinctions are

care

and under-

The

standing; logical confusions are patiently unraveled thor's presentation fair

is

lucid, restrained, thoughtful

An important contribution

problem

at least as old as Plato."

to public

—Myron

au-

and always

understanding of a Fink,

Law

Library

Journal

Stanford University Press

ISBN 0-8047-0540-2